RULE 77: CIVIL CASE MANAGEMENT

Scope

(1) This Rule applies to actions and applications,

(a) commenced in a county named in the Schedule to this rule on or after the date specified in the Schedule for the county;

(b) commenced in The Municipality of Metropolitan Toronto or the City of Toronto before July 3, 2001 and randomly assigned to case management by the registrar, acting under the direction of the regional senior judge; and

(c) commenced in the City of Toronto on or after July 3, 2001 and assigned to case management by the registrar, acting under the direction of the regional senior judge. O. Reg. 555/96, s. 2; O. Reg. 442/97, s. 4; O. Reg. 113/01, s. 5 (1).

Ordering Proceeding into Case Management

(1.1) This Rule also applies to an action or application that is brought under case management by an order under subrule 77.11 (1.1). O. Reg. 570/98, s. 16 (1).

Assignment Under Rule 78.12

(1.2) This Rule also applies to an action that is assigned, under rule 78.12, to case management in accordance with this Rule. O. Reg. 198/05, s. 6 (1).

Revocation

(1.3) Subrule (1.2) is revoked on January 1, 2010. O. Reg. 198/05, s. 6 (1); O. Reg. 55/08, s. 6; O. Reg. 438/08, s. 61.

Exception

(2) This Rule does not apply to,

(a) Revoked: O. Reg. 198/05, s. 6 (2).

(b) Revoked: O. Reg. 198/05, s. 6 (2).

(c) actions or applications placed on the Commercial List established by practice direction in the Toronto Region;

(d) actions or applications under Rules 74 and 75;

(d.0.1) applications for the removal or replacement of personal representatives under the Trustee Act;

(d.0.2) applications under Part V of the Succession Law Reform Act;

(d.0.3) applications for guardianship of property or persons under the Substitute Decisions Act, 1992;

(d.0.4) Revoked: O. Reg. 198/05, s. 6 (2).

(d.0.5) Revoked: O. Reg. 198/05, s. 6 (2).

(d.1) actions under Rule 64 (Mortgage Actions);

(d.2) actions under Rule 76;

(e) actions or applications under the Construction Lien Act, except trust claims;

(f) actions or applications under the Bankruptcy and Insolvency Act (Canada); and

(g) actions or applications certified as class proceedings under the Class Proceedings Act, 1992. O. Reg. 555/96, s. 2; O. Reg. 118/97, s. 5; O. Reg. 570/98, s. 16 (2); O. Reg. 113/01, s. 5 (2); O. Reg. 457/01, s. 10; O. Reg. 206/02, s. 21 (1); O. Reg. 198/05, s. 6 (2).

Class Proceedings Act, 1992

(2.1) This Rule applies to an action or application commenced under the Class Proceedings Act, 1992 only if certification as a class proceeding has been denied. O. Reg. 570/98, s. 16 (3).

Conflict with Other Rules

(3) In the event of conflict between a provision of Rules 1 to 76 and a provision of this Rule, the latter prevails. O. Reg. 555/96, s. 2.

Time

(4) In a proceeding to which this Rule applies, a time prescribed in any of Rules 1 to 76 or in this Rule may be extended or abridged only by order of a case management judge or case management master. O. Reg. 570/98, s. 16 (4).

Place of Hearing of Motions

(5) Unless the court orders otherwise, all motions shall be heard in the county where the proceeding was commenced or to which it has been transferred under rule 13.1.02. O. Reg. 14/04, s. 41.

SCHEDULE

Regional Municipality of Ottawa-Carleton: January 2, 1997

(known as City of Ottawa on and after January 1, 2001)

County of Essex

December 31, 2002

O. Reg. 206/02, s. 21 (2).

The purpose of this Rule is to establish a case management system throughout Ontario that reduces unnecessary cost and delay in civil litigation, facilitates early and fair settlements and brings proceedings expeditiously to a just determination while allowing sufficient time for the conduct of the proceeding. O. Reg. 555/96, s. 2.

In rules 77.03 to 77.17,

“case management judge” means the judge or a member of a team of judges assigned to manage a proceeding; (“juge responsable de la gestion de la cause”)

“case management master” means a person appointed by the Lieutenant Governor in Council under section 86.1 of the Courts of Justice Act; (“protonotaire responsable de la gestion de la cause”)

“defence” includes a notice of intent to defend, a statement of defence, a notice of appearance and a notice of motion in response to a proceeding; (“défense”)

“defendant” includes a respondent; (“défendeur”)

“plaintiff” includes an applicant; (“demandeur”)

“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,

(a) an order of a case management judge or case management master, or

(b) a written agreement of the parties that is not contrary to an order; (“calendrier”)

“track” means either the fast track or the standard track provided by this Rule. (“voie”) O. Reg. 555/96, s. 2; O. Reg. 118/97, s. 6; O. Reg. 113/01, s. 6; O. Reg. 457/01, s. 11.

(1) A case management master has,

(a) the power to hear motions that are within the jurisdiction of a master under subrule 37.02 (2); and

(b) case management powers and duties provided by this Rule. O. Reg. 555/96, s. 2.

(2) Under the direction of the case management judge, a case management master may manage any proceeding to which this Rule applies. O. Reg. 555/96, s. 2.

File Number for Third and Subsequent Party Claims

(1) Third and subsequent party claims shall be given the same file number as the main action, followed by a suffix letter. O. Reg. 555/96, s. 2.

Format of Documents

(2) The forms prescribed in this Rule and notices, certificates and orders referred to in it may be single spaced and need not have a backsheet. O. Reg. 555/96, s. 2; O. Reg. 118/97, s. 7.

(1) Revoked: O. Reg. 457/01, s. 12.

(2) Revoked: O. Reg. 627/98, s. 8.

(3) Revoked: O. Reg. 284/01, s. 26.

(4) Revoked: O. Reg. 284/01, s. 26.

(4.1) Revoked: O. Reg. 284/01, s. 26.

Choice of Track

(5) On filing Form 14F (Information for court use), the plaintiff shall choose the fast track or the standard track for the proceeding. O. Reg. 555/96, s. 2; O. Reg. 206/02, s. 22.

(6) In choosing a track, the plaintiff shall have regard to all relevant considerations, including,

(a) the complexity of the issues of fact or law;

(b) the likely expense to the parties;

(c) the importance to the public of the issues of fact or law;

(d) the number of parties or prospective parties;

(e) the amount of intervention by the case management judge that the proceeding is likely to require; and

(f) the time required for proper discovery, if applicable, and preparation for trial or hearing. O. Reg. 555/96, s. 2.

Track Chosen by Plaintiff

(7) The proceeding shall proceed on the track chosen by the plaintiff unless the court orders otherwise. O. Reg. 555/96, s. 2.

(8) Revoked: O. Reg. 284/01, s. 26.

(9) Revoked: O. Reg. 284/01, s. 26.

(10) Revoked: O. Reg. 284/01, s. 26.

(1) A case management judge or case management master may order that a proceeding be transferred from one track to the other. O. Reg. 555/96, s. 2.

(2) A party who seeks an order under subrule (1) shall move for the order,

(a) in the case of an action, before the close of pleadings;

(b) in the case of an application, on or before the tenth day after the first affidavit has been filed by a respondent. O. Reg. 555/96, s. 2.

(3) On a motion under subrule (1), a case management judge or case management master shall have regard to the matters set out in subrule 77.06 (6). O. Reg. 555/96, s. 2.

(1) Where no defence has been filed and the proceeding has not been disposed of by final order or judgment, the registrar shall, 180 days after the date of issue of the originating process, make an order dismissing the proceeding as abandoned. O. Reg. 118/97, s. 9.

(2) The dismissal of an action as abandoned has the same effect as a dismissal for delay under rule 24.05. O. Reg. 653/00, s. 10.

(1) Revoked: O. Reg. 457/01, s. 13.

Assignment to Case Management

(2) On the filing of a defence, the proceeding shall be assigned to a case management judge or team for management in accordance with rules 77.10 to 77.17. O. Reg. 284/01, s. 27.

On Consent of Parties

(1) A regional senior judge or a judge designated by him or her may, with the written consent of all parties, assign one or more proceedings to a judge, or in exceptional circumstances to two or more judges, for management in accordance with rules 77.10 to 77.17. O. Reg. 113/01, s. 7.

On Motion — Action

(2) In an action, on the filing of the last defence or on the expiration of the time for filing defences, a regional senior judge or a judge designated by him or her may, on a party’s motion, assign the action to a judge, or in exceptional circumstances to two or more judges, for management in accordance with rules 77.10 to 77.17. O. Reg. 113/01, s. 7.

On Motion — Application

(3) In an application, on the filing of the last notice of appearance or on the expiration of the time for filing notices of appearance, a regional senior judge or a judge designated by him or her may, on a party’s motion, assign the application to a judge, or in exceptional circumstances to two or more judges, for management in accordance with rules 77.10 to 77.17. O. Reg. 113/01, s. 7.

Multiple Proceedings

(4) Two or more actions or applications may be assigned together under subrule (2) or (3). O. Reg. 113/01, s. 7.

Criteria

(5) In considering whether to assign a proceeding in accordance with this rule, the regional senior judge or designated judge shall have regard to all the relevant circumstances, including,

(a) the purpose of case management;

(b) the complexity of the issues of fact or law;

(c) the importance to the public of the issues of fact or law;

(d) the number and kind of the parties or prospective parties, and whether they are represented;

(e) the number of proceedings involving the same or similar parties or causes of action;

(f) the amount of intervention by the case management judge that the proceeding is likely to require;

(g) the time required for discovery, if applicable, and for preparation for trial or hearing;

(h) the number of expert witnesses and other witnesses;

(i) the time required for the trial or hearing; and

(j) any other factors that the judge considers relevant or that are raised by a party. O. Reg. 113/01, s. 7; O. Reg. 132/04, s. 20.

Assistance by Case Management Master

(6) A judge or group of judges to whom a proceeding is assigned under this rule may assign a case management master or, in exceptional circumstances, two or more case management masters, to assist in managing the proceeding. O. Reg. 113/01, s. 7.

Time Requirement Established by Rules

(1) If a party fails to comply with a time requirement established by these rules, a case management judge or case management master may convene a case conference and at the case conference may,

(a) establish or amend a timetable and order the party to comply with it; and

(b) order the party to pay costs. O. Reg. 113/01, s. 8.

Duty of Plaintiff

(2) In a proceeding to which this Rule applies, the plaintiff shall file a timetable or request a case conference to establish a timetable,

(a) if an order is made under rule 24.1.05 (exemption from mediation), within 30 days after the order is made;

(b) if a mediation session is held but the proceeding is not settled, within 30 days after the mediator’s report is given to the parties under subrule 24.1.15 (1);

(c) in any other case, within 180 days after the proceeding is commenced. O. Reg. 206/02, s. 23.

Duty of Case Management Judge or Case Management Master

(3) If the plaintiff fails to comply with subrule (2), a case management judge or case management master shall convene a case conference to establish a timetable. O. Reg. 113/01, s. 8.

Limited Application

(4) Subrules (2) and (3) do not apply to proceedings,

(a) commenced before July 3, 2001 in the City of Toronto;

(b) commenced on or after January 1, 2001 in the City of Ottawa, as established by the City of Ottawa Act, 1999;

(c) commenced before January 1, 2001 in The Regional Municipality of Ottawa-Carleton. O. Reg. 113/01, s. 8.

Contents of Timetable

(5) A timetable established under this rule shall,

(a) provide for the completion of examinations for discovery and any incidental motions at least 10 days before the settlement conference under rule 77.14; or

(b) include an explanation of the non-compliance with clause (a). O. Reg. 113/01, s. 8.

Case Conference to Review Timetable

(6) A case management judge or case management master may convene a case conference to review a timetable established under this rule. O. Reg. 113/01, s. 8.

Non-Compliance with Timetable

(7) If a party fails to comply with a time requirement set out in a timetable established under this rule, a case management judge or case management master may,

(a) strike out any document filed by the party;

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

(c) amend the timetable and order the party to comply with it;

(d) order the party to pay costs; and

(e) make any other order that is just. O. Reg. 113/01, s. 8.

Powers Generally

(1) A case management judge or case management master may,

(a) extend or abridge a time prescribed by an order or the rules;

(b) transfer a proceeding from one track to the other;

(c) adjourn a case conference;

(d) set aside an order made by the registrar; and

(e) make orders, impose terms, give directions and award costs as necessary to carry out the purpose of this Rule. O. Reg. 555/96, s. 2; O. Reg. 113/01, s. 9.

Transfer to Case Management

(1.1) A case management judge or case management master may order that this Rule apply to any proceeding that is not already under case management, except a proceeding mentioned in subrule 77.01 (2), and may include any necessary directions in the order, including a direction that proceedings under this Rule be governed by a common timetable. O. Reg. 570/98, s. 18.

(1.2) An order under subrule (1.1) may be made only on notice to the affected parties. O. Reg. 570/98, s. 18.

Exception

(1.3) For greater certainty, subrule (1.1) does not apply to an action that is governed by Rule 78. O. Reg. 198/05, s. 7.

Revocation

(1.4) Subrule (1.3) is revoked on January 1, 2010. O. Reg. 198/05, s. 7; O. Reg. 55/08, s. 7; O. Reg. 438/08, s. 62.

Powers on Own Initiative

(2) The case management judge or case management master may, on his or her own initiative, require a hearing, case conference or conference call to deal with any matter arising in connection with case management, including a failure to comply with the rules. O. Reg. 555/96, s. 2.

To Whom Made

(1) A motion may be made only to a case management judge or case management master. O. Reg. 570/98, s. 19 (1).

Moving Party’s Case Management Motion Form

(2) The moving party shall serve a case management motion form (Form 77C) in accordance with rule 37.07 and shall submit it to the court before the motion is heard. O. Reg. 570/98, s. 19 (1).

Procedure

(2.1) Depending on the practical requirements of the situation, the motion may be made,

(a) with or without supporting material or a motion record;

(b) by attendance, in writing, by fax or under rule 1.08 (telephone and video conferences). O. Reg. 570/98, s. 19 (1); O. Reg. 113/01, s. 10.

Responding Party’s Case Management Motion Form

(2.2) The responding party may serve and submit a case management motion form but is not required to do so. O. Reg. 570/98, s. 19 (1).

Confirmation — Opposed Motion

(3) On an opposed motion that is to be argued other than in writing, the moving party’s lawyer shall confirm to the registrar by fax or notice in writing, by 2 p.m. the day before the hearing date, that the motion is to proceed as scheduled, failing which the motion shall not proceed on that date. O. Reg. 555/96, s. 2; O. Reg. 575/07, s. 1.

Costs on Motions

(4) The case management judge or case management master shall, at the conclusion of each motion, address the issue of costs and, where appropriate, fix the costs and order them payable forthwith. O. Reg. 555/96, s. 2.

Motions Dealt With by Registrar

(5) The registrar shall make an order granting the relief sought on the following motions:

1. A motion for an order on consent, where the consent of all parties is filed, the consent states that no party affected by the order is under disability and the order is for,

i. amendment of a pleading, notice of application or notice of motion,

ii. addition, deletion or substitution of a party, where the consent of the party is filed,

iii. removal of a lawyer as lawyer of record,

iv. setting aside the noting of a party in default,

v. setting aside a default judgment,

vi. discharge of a certificate of pending litigation,

vii. security for costs in a specified amount,

viii. re-attendance of a witness to answer questions on an examination,

ix. fulfilment of undertakings given on an examination, or

x. dismissal of a proceeding with or without costs.

2. A motion where no responding material is filed, the notice of motion or the case management motion form states that no party affected by the order is under disability and the order is for relief set out in paragraph 1. O. Reg. 555/96, s. 2; O. Reg. 570/98, s. 19 (2); O. Reg. 575/07, s. 35.

Disposition of Motion

(6) The case management judge, case management master or registrar shall record the disposition of the motion on the case management motion form. O. Reg. 570/98, s. 19 (3).

(7) No formal order need be prepared, signed or entered unless,

(a) the case management judge, case management master or registrar directs otherwise;

(b) an appeal is made to a judge; or

(c) an appeal or a motion for leave to appeal is made to an appellate court. O. Reg. 570/98, s. 19 (3).

How Convened

(1) A case management judge or a case management master may convene a case conference at any time, on his or her own initiative or at a party’s request. O. Reg. 555/96, s. 2.

Parties’ Attendance

(2) A case management judge or case management master may direct that the parties, or a representative of the parties responsible for making decisions regarding the proceeding and instructing the lawyer, attend the conference personally. O. Reg. 555/96, s. 2; O. Reg. 575/07, s. 1.

Matters to be Dealt With

(3) At the conference, a case management judge or case management master may,

(a) identify the issues and note those that are contested and those that are not;

(b) explore methods to resolve the contested issues;

(c) if possible, secure the parties’ agreement on a specific schedule of events in the proceeding;

(d) create a timetable for the proceeding; and

(e) review and, if necessary, amend an existing timetable. O. Reg. 555/96, s. 2; O. Reg. 570/98, s. 20 (1).

Lawyers

(4) The lawyers attending the conference shall have authority to deal with the matters referred to in subrule (3) and shall be fully acquainted with the facts and legal issues. O. Reg. 555/96, s. 2; O. Reg. 575/07, s. 4.

Powers of Judge

(5) At the conference, a case management judge may, where appropriate, in addition to exercising the powers conferred by subrule 77.11 (1),

(a) make a procedural order;

(b) on consent of the parties, make an order for interlocutory relief;

(c) on consent of the parties, refer any issue for alternative dispute resolution;

(d) convene a settlement conference;

(e) convene a hearing; and

(f) give directions. O. Reg. 113/01, s. 11 (1).

Powers of Case Management Master

(6) At the conference, a case management master may, where appropriate, in addition to exercising the powers conferred by subrule 77.11 (1),

(a) make a procedural order;

(b) on consent of the parties, make an order within the jurisdiction of a case management master;

(c) on consent of the parties, refer any issue for alternative dispute resolution; and

(d) convene a settlement conference. O. Reg. 113/01, s. 11 (1).

(7) Revoked: O. Reg. 284/01, s. 28.

(8) Revoked: O. Reg. 113/01, s. 11 (2).

Scheduled Automatically by Registrar

(1) The registrar shall, on at least 45 days notice to the parties, schedule a settlement conference to take place,

(a) if the proceeding is on the fast track, not later than 150 days after the first defence is filed;

(b) if the proceeding is on the standard track, not later than 240 days after the first defence is filed. O. Reg. 555/96, s. 2; O. Reg. 570/98, s. 21 (1).

Steps to be Completed Before Conference

(2) All examinations, production of documents and motions arising out of examinations and production of documents shall be completed before the settlement conference date. O. Reg. 555/96, s. 2.

Parties’ Attendance At Settlement Conference

(3) A case management judge or case management master may direct the parties, or a representative of a party responsible for making decisions in the proceeding and instructing the lawyer, to attend all or part of a settlement conference personally with their lawyers. O. Reg. 555/96, s. 2; O. Reg. 575/07, ss. 1, 4.

Settlement Conference Brief

(4) The plaintiff shall deliver not later than 10 days before the settlement conference a settlement conference brief, containing all material the plaintiff considers necessary for the settlement conference, and shall certify that subrule (2) has been complied with. O. Reg. 555/96, s. 2; O. Reg. 284/01, s. 29 (1).

Other Parties To Deliver Briefs

(5) Every other party shall deliver a settlement conference brief containing any other material the party considers necessary for the settlement conference not later than five days before the conference. O. Reg. 555/96, s. 2; O. Reg. 284/01, s. 29 (2).

Contents of Brief

(6) A settlement conference brief shall contain,

(a) a concise summary of the facts, including the agreed upon facts and admissions;

(b) where necessary, a concise summary of the issues and the law to be relied upon by each party;

(c) a list of witnesses and a summary of each witness’s evidence;

(d) the relevant portions only of transcripts, experts’ reports and other evidence that may be adduced at trial; and

(e) the party’s pleadings, including any demand or order for particulars of a pleading and the particulars delivered in response. O. Reg. 555/96, s. 2; O. Reg. 570/98, s. 21 (2).

Trial Date

(7) At the conference, a case management judge or case management master shall assign a trial or hearing date, or refer the parties to a judge responsible for the assignment of a trial or hearing date. O. Reg. 555/96, s. 2; O. Reg. 118/97, s. 11.

Trial Record

(8) A trial or application record shall be served and filed in accordance with rule 48.02 or subrule 38.09 (1) no later than seven days before the trial or hearing date. O. Reg. 555/96, s. 2.

(9) Revoked: O. Reg. 284/01, s. 29 (3).

Settlement Conference Judge Not to Preside at Hearing

(10) A judge who conducts a settlement conference shall not preside at the trial of the action or the hearing of the application. O. Reg. 555/96, s. 2.

Exception, Toronto Actions

(11) Subrules (1) to (10) do not apply to actions commenced in the City of Toronto, which shall, instead, be set down for trial under Rule 48. O. Reg. 198/05, s. 8.

Revocation

(12) Subrule (11) is revoked on January 1, 2010. O. Reg. 198/05, s. 8; O. Reg. 55/08, s. 8; O. Reg. 438/08, s. 63.

When Conference to be Held

(1) A trial management conference may be held on or following the setting of a trial date, at the request of one of the parties or on the initiative of the trial judge, case management judge or case management master. O. Reg. 555/96, s. 2.

Filing of Form

(2) A trial management conference form (Form 77D) shall be filed by the plaintiff and the defendant no later than 14 days before the trial or four days before the trial management conference, whichever is earlier. O. Reg. 118/97, s. 12.

Powers of Judge or Master

(3) At the trial management conference, the trial judge, case management judge or case management master may in addition to exercising the powers conferred by subrule 77.11 (1),

(a) canvass with the parties the names of the witnesses intended to be called and the substance of their testimony;

(b) explore whether admissions can be made that will facilitate proof of non-contentious matters;

(c) explore alternative methods of presentation of evidence, such as the filing of affidavits or reports;

(d) explore with the lawyers expeditious means for the presentation of evidence; and

(e) give directions that will facilitate the orderly and expeditious conduct of the trial. O. Reg. 555/96, s. 2; O. Reg. 113/01, s. 12; O. Reg. 575/07, s. 4.

(4) Revoked: O. Reg. 284/01, s. 30.

The Chief Justice of the Superior Court of Justice shall appoint an advisory committee composed of such members of the bench, the bar, the Ministry of the Attorney General and the public as are necessary to monitor the operation of this Rule and, where appropriate, to make recommendations for improvement. O. Reg. 555/96, s. 2; O. Reg. 292/99, s. 3.

Despite Rule 77.01, the following transitional provisions apply:

1. Where a proceeding has been commenced in a county before the date set out in the Schedule to rule 77.01 for the county and where no defence has been filed as of that date, rule 77.08 applies to the proceeding and the 180-day period described in rule 77.08 begins to run on that date.

2. Where a proceeding has been commenced in a county before the date set out in the Schedule to rule 77.01 for the county and a defence has been filed before that date, the proceeding shall be dismissed by the registrar unless the parties have fixed a date for a settlement conference within 365 days from that date. O. Reg. 206/02, s. 24.

[Note: On January 1, 2010, Rule 77 is revoked and the following substituted:

RULE 77: CIVIL CASE MANAGEMENT