RULE 48: LISTING FOR TRIAL

After the close of pleadings, any party to an action or to a counterclaim or crossclaim in the action who is not in default under these rules or an order of the court and who is ready for trial may set the action down for trial, together with any counterclaim or crossclaim. R.R.O. 1990, Reg. 194, r. 48.01.

Defended Action

(1) Where an action is defended, a party who wishes to set it down for trial may do so by serving a trial record prepared in accordance with rule 48.03 on every party to the action or to a counterclaim or crossclaim in the action and on any third or subsequent party and forthwith filing the trial record with proof of service. O. Reg. 396/91, s. 5.

Undefended Action

(2) Where the court orders the trial of an undefended action, a party who wishes to set it down for trial may do so by filing a trial record prepared in accordance with rule 48.03. O. Reg. 396/91, s. 5.

Defended Third Party Claim

(3) Where an action is a defended third party claim, a party who wishes to set it down for trial shall, in addition to complying with subrule (1), serve the trial record in the third party claim on the plaintiff in the main action within the time for service on the parties to the third party claim and shall forthwith file proof of service. O. Reg. 396/91, s. 5.

Undefended Third Party Claim

(4) Where an action is an undefended third party claim, a party who wishes to set it down for trial shall serve the trial record in the third party claim on the plaintiff in the main action and shall forthwith file proof of service. O. Reg. 396/91, s. 5.

Trial at Another Place

(5) Where an action is to be tried at a place other than where it was commenced, the party filing the trial record shall by requisition require the court file, including the trial record, to be sent to the court office at the place of trial. O. Reg. 396/91, s. 5.

(1) The trial record shall contain, in the following order,

(a) a table of contents, describing each document by its nature and date;

(b) a copy of any jury notice;

(c) a copy of the pleadings, including those relating to any counterclaim or crossclaim;

(d) Revoked: O. Reg. 131/04, s. 12 (1).

(e) a copy of any demand or order for particulars of a pleading and the particulars delivered in response;

(f) a copy of any notice of amounts and particulars of special damages delivered under clause 25.06 (9) (b);

(g) a copy of any order respecting the trial; and

[Note: On January 1, 2010, clause (g) is revoked and the following substituted:

(g) a copy of any order respecting the trial, including an order made under Rule 6.1; and

(h) a certificate signed by the lawyer setting the action down, stating,

(i) that the record contains the documents required by clauses (a) to (g),

(ii) that the time for delivery of pleadings has expired,

(iii) where applicable, that a defendant who has failed to deliver a statement of defence has been noted in default, and

(iv) where applicable, that judgment has been obtained or that the action has been discontinued or dismissed against a defendant. R.R.O. 1990, Reg. 194, r. 48.03 (1); O. Reg. 131/04, s. 12 (1, 2); O. Reg. 575/07, s. 1.

(2) It is the responsibility of the party who filed the trial record to place with the record, before the trial, a copy of,

(a) any notice of amounts and particulars of special damages delivered after the filing of the trial record;

(b) any order respecting the trial made after the filing of the trial record;

(c) any memorandum signed by lawyers, or any order made by the court, following a pre-trial conference; and

[Note: On January 1, 2010, clause (c) is revoked and the following substituted:

(c) any order under rule 50.07 or pre-trial conference report under rule 50.08; and

(d) in an undefended action, any affidavit to be used in evidence.

(e), (f) Revoked: O. Reg. 131/04, s. 12 (3).

R.R.O. 1990, Reg. 194, r. 48.03 (2); O. Reg. 69/95, s. 19; O. Reg. 131/04, s. 12 (3); O. Reg. 575/07, s. 22.

(1) Any party who has set an action down for trial and any party who has consented to the action being placed on a trial list shall not initiate or continue any motion or form of discovery without leave of the court. R.R.O. 1990, Reg. 194, r. 48.04 (1).

(2) Subrule (1) does not,

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

(b) relieve a party from any obligation imposed by,

[Note: On January 1, 2010, clause (b) is amended by adding the following subclause:

(0.i) rule 29.1.03 (requirement for discovery plan),

(i) rule 30.07 (disclosure of documents or errors subsequently discovered),

(ii) rule 30.09 (abandonment of claim of privilege),

(iii) rule 31.07 (failure to answer on discovery),

(iv) rule 31.09 (disclosure of information subsequently obtained),

(v) rule 51.03 (duty to respond to request to admit),

(vi) rule 53.03 (service of report of expert witness); or

(vii) Revoked: O. Reg. 131/04, s. 13.

(c) preclude a party from resorting to rule 51.02 (request to admit facts or documents). R.R.O. 1990, Reg. 194, r. 48.04 (2); O. Reg. 131/04, s. 13; O. Reg. 260/05, s. 10.

(1) In an undefended action, on receipt of the trial record the registrar at the place of trial shall forthwith place the action on the appropriate trial list. R.R.O. 1990, Reg. 194, r. 48.05 (1).

(2) An undefended action shall not be placed on a trial list for a sitting outside Toronto unless the trial record is received by the registrar at the place of trial at least ten days before the commencement of the sitting, except where a judge orders otherwise. R.R.O. 1990, Reg. 194, r. 48.05 (2).

(3) Revoked: O. Reg. 396/91, s. 6.

(1) A defended action shall be placed on the appropriate trial list by the registrar sixty days after the action is set down for trial or, if the consent in writing of every party other than the party who set the action down is filed earlier, on the date of filing. O. Reg. 396/91, s. 7.

(2) A defended action shall not be placed on a trial list for a sitting outside Toronto later than ten days before the commencement of the sitting, except where a judge orders otherwise. O. Reg. 396/91, s. 7.

Where an action is placed on a trial list,

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

[Note: On January 1, 2010, clause (a) is amended by adding “and” at the end. See: O. Reg. 438/08, ss. 44, 68 (1).]

(b) a pre-trial conference in the action shall proceed as scheduled unless the judge or officer presiding at the conference orders otherwise; and

[Note: On January 1, 2010, clause (b) is revoked. See: O. Reg. 438/08, ss. 44, 68 (1).]

(c) the trial shall proceed when the action is reached on the trial list unless a judge orders otherwise. R.R.O. 1990, Reg. 194, r. 48.07.

(1) Actions to be tried with a jury shall be placed on a trial list of jury actions and actions to be tried without a jury shall be placed on a trial list of non-jury actions. R.R.O. 1990, Reg. 194, r. 48.08 (1).

(2) Where the next scheduled sitting in a place outside Toronto is for the trial of jury actions, the trial list of non-jury actions shall be added at the end of the trial list of jury actions. R.R.O. 1990, Reg. 194, r. 48.08 (2).

The registrar shall keep a separate speedy trial list on which only actions for which a speedy trial has been ordered shall be listed. R.R.O. 1990, Reg. 194, r. 48.09.

Unless a judge orders otherwise, all actions traversed to the next sitting and all actions remaining on the trial list at the conclusion of a sitting shall stand in the same order at the beginning of the next appropriate trial list. R.R.O. 1990, Reg. 194, r. 48.10.

Where an action is struck off a trial list, it shall not thereafter be placed on any trial list except,

(a) in the case of an action struck off the list by a judge, with leave of a judge; or

(b) in any other case, with leave of the court. O. Reg. 55/08, s. 4.

Every party to an action, whether it is placed on a trial list or not, shall promptly inform the registrar of any settlement of the action and shall confirm in writing that the action has been settled. R.R.O. 1990, Reg. 194, r. 48.12.

Rules 48.01 to 48.12 apply to any proceeding in which the court has directed the trial of an issue, unless the court orders otherwise. R.R.O. 1990, Reg. 194, r. 48.13.

Status Notice

(1) Where an action in which a statement of defence has been filed has not been placed on a trial list or terminated by any means within two years after the filing of a statement of defence, the registrar shall serve on the parties a status notice (Form 48C) that the action will be dismissed for delay unless it is set down for trial or terminated within ninety days after service of the notice. O. Reg. 396/91, s. 8; O. Reg. 770/92, s. 13 (1).

(2) A lawyer who receives a status notice shall forthwith give a copy of the notice to his or her client. O. Reg. 396/91, s. 8; O. Reg. 575/07, s. 1.

Dismissal by Registrar

(3) The registrar shall dismiss the action for delay, with costs, ninety days after service of the status notice, unless,

(a) the action has been set down for trial;

(a.1) in an action under Rule 78, documents have been filed in accordance with rule 78.08;

(b) the action has been terminated by any means; or

(c) a judge presiding at a status hearing has ordered otherwise. O. Reg. 396/91, s. 8; O. Reg. 198/05, s. 5 (1).

Revocation

(3.1) Clause (3) (a.1) is revoked on January 1, 2010. O. Reg. 198/05, s. 5 (2); O. Reg. 55/08, s. 5; O. Reg. 438/08, s. 45.

(4) Where an action is not set down for trial or terminated by any means within the time specified in an order made at a status hearing, the registrar shall dismiss the action for delay, with costs. O. Reg. 212/93, s. 4.

(4.0.1) The registrar shall serve an order made under subrule (3) or (4) (Form 48D) on the parties. O. Reg. 212/93, s. 4.

(4.1) A lawyer who is served with an order dismissing the action for delay shall forthwith give a copy of the order to his or her client, and shall file proof that a copy was given to the client. O. Reg. 770/92, s. 13 (2); O. Reg. 575/07, s. 1.

Status Hearing

(5) Where a status notice has been served, any party may request that the registrar arrange a status hearing, in which case the registrar shall mail to the parties a notice of the hearing, and the hearing shall be held before a judge. O. Reg. 396/91, s. 8.

Attendance at Status Hearing

(6) The lawyers of record shall attend, and the parties may attend, the status hearing. O. Reg. 575/07, s. 23.

(7) Where a party represented by a lawyer does not attend the hearing, the party’s lawyer shall file proof that a copy of the status notice and notice of the time and place of the status hearing were given to the party. O. Reg. 396/91, s. 8; O. Reg. 575/07, s. 1.

Disposition at Status Hearing

(8) At the status hearing, the plaintiff shall show cause why the action should not be dismissed for delay, and,

(a) if the presiding judge is satisfied that the action should proceed, the judge may set time periods for the completion of the remaining steps necessary to have the action placed on a trial list and may order that it be placed on a trial list within a specified time, or may adjourn the status hearing to a specified date, on such terms as are just; or

(b) if the presiding judge is not satisfied that the action should proceed, the judge may dismiss the action for delay. O. Reg. 396/91, s. 8.

Plaintiff Under Disability

(9) Where the plaintiff is under disability, the action may be dismissed for delay only if,

(a) the defendant gives notice to the Children’s Lawyer or, if the Public Guardian and Trustee is litigation guardian of the plaintiff, to the Public Guardian and Trustee; or

(b) the presiding judge or a judge on motion orders otherwise. O. Reg. 396/91, s. 8; O. Reg. 69/95, ss. 18-20.

Effect of Dismissal

(10) Rules 24.03 to 24.05 (effect of dismissal for delay) apply to an action dismissed for delay under subrule (3), (4) or (8). O. Reg. 396/91, s. 8.

(11) An order under this rule dismissing an action may be set aside under rule 37.14. O. Reg. 396/91, s. 8.

[Note: On January 1, 2010, rule 48.14 is revoked and the following substituted:

<48.14> ACTION NOT ON TRIAL LIST