SUPERIOR COURT OF JUSTICE, EAST REGION OFFICE OF THE MASTER HOW DOES THE NEW PRE-TRIAL PROCESS WORK? Actions must be set down for trial within two years of being defended. The two year deadline can only be extended by court order. (Rule 3.04 (3)) Failing to set the action down for trial within the time limit will trigger a status notice and possible dismissal of the action. (Rule 48.14) If the parties have extended the time for mediation, the mediation must be completed or scheduled prior to setting the action down for trial. (Rule 24.1.09 (6.1)) Setting the action down for trial will trigger a pre-trial Setting the action down for trial will result in scheduling of a pre-trial. (Rule 50.02) Parties will be required to indicate when they can be available for the pre-trial failing which the registrar will arbitrarily set a date and send out a notice. In Ottawa the pre-trials will be scheduled by the case management co-ordinator acting as the Registrar. In other counties pre-trial scheduling is generally done by the trial office. In Ottawa, a pre-trial certification and request form shown below should be filed with the trial record. Pretrials will be scheduled within 180 days of setting the action down for trial In Ottawa the current practice of scheduling pre-trial dates with approximately 90 days notice will continue. Counsel should provide proposed dates in the pre-trial certification and request form. If no form is filed then the pre-trial date will be arbitrarily fixed by the Registrar. Pre-trials will normally be scheduled for one hour. Parties may request a longer pre-trial in appropriate cases. This may be done on the pre-trial request form. The pre-trial brief must include lists of witnesses and steps remaining to be completed. The contents of the pre-trial brief are listed in Rule 50.04. Unlike the Rule 77 settlement conference brief there is no need to include the pleadings because the trial record will be available. A format for a pre-trial brief is attached. Pre-trial briefs must be filed at least 5 days before the pre-trial. (Rule 50.04) Note that the schedules listing witnesses and steps to be completed prior to trial will form part of the report to the trial judge and will inform any pre-trial orders. Key documents are to be provided with the brief The key documents that will be used at trial and which are important for the purpose of the settlement conference must be provided with the pre-trial brief. This will include medical and expert reports. (Rule 50.11) Since one of the goals in preparing pre-trial documents is to obtain the view of the presiding judge or master on the critical issues, it is important in the brief to identify with precision what the parties wish the pre-trier to read. Expert reports must be served prior to the pre-trial The times for serving expert reports and responding expert reports are now relative to the date of the pre-trial and not the trial. (Rule 53.03) These reports are due 90 days and 60 days prior to the pre-trial or on a schedule agreed to by the parties. (Rule 50.03 (2.2)
The timing and need for supplementary expert reports will be one of the matters dealt with in the timetable for trial. Note that the court may order a meeting of experts prior to trial and this may be ordered at the pre-trial. Counsel, parties and those with settlement authority must attend the pre-trial Parties and their counsel must attend the pre-trial in person unless the presiding judicial officer grants leave in advance for telephone attendance under Rule 1.08 (See Rule 50.05 (1) and Rule 1.08) If a person other than a party has to approve a settlement then that person should either be at the conference or must be immediately available. (Rule 5.05 (2)). If an insurer is involved and the approval of the named party is not required to conclude a settlement then the representative of the insurer may attend in place of the party. The pre-trial will deal with settlement, narrowing of issues, alternatives to trial, trial scheduling and pre-trial case management Rule 50.06 includes a list of matters that will be dealt with at the pre-trial. Included in the list is the possibility of settling any or all of the issues, narrowing of the issues, admissions, liability and damages. Also included is the question of trial scheduling, experts and other witnesses to be called at trial and use of court appointed experts. The judicial officer presiding at the pre-trial may make binding pre-trial orders Besides fixing the date for trial and providing for pre-trial case management if necessary, the pretrial judge or master may also make a number of very specific orders. (Rule 50.07 (1) and Rule 20.05 (1) & (2)) Pre-trial orders may now specifically require such things as exchange of witness statements, use of affidavits at trial, time limits on evidence at trial, meetings of experts, exchange and filing of opening statement summaries, filing of agreed facts, payment into court of part of the claim and security for costs. These orders will be placed with the trial record and are binding on the parties unless the trial judge otherwise orders to prevent injustice. (Rule 50.07 (2)) In Ottawa trial dates will be fixed at the pre-trial If the action is not settled at the pre-trial, and providing the court is satisfied the matter is trial ready, then the practice of providing fixed trial dates will continue as at present. In other parts of Ontario trial scheduling practices vary and there may remain assignment courts and running trial lists. In all cases, however, parties are expected to be ready to proceed when called. Each party must sign the pre-trial conference report If a trial date is set then a report will be prepared and this will be available to the trial judge. On the report, the parties must certify the steps, if any, to be completed prior to trial, the length of the trial and any other matter relevant to scheduling the trial or hearing. (Rule 50.08) The list of witnesses to be called at trial will ordinarily form part of the report. November 6, 2009
Title of Proceeding: SUPERIOR COURT OF JUSTICE (East Region Ottawa) Court File No: PRE-TRIAL CERTIFICATION AND REQUEST FORM Jury Non-Jury Bilingual This form is to be filed along with the trial record by the party setting the action down for trial. The information will be used to schedule a pre-trial pursuant to Rule 50. A copy of the form is to be served on the other parties and will be provided to the presiding judge or master. Failure to provide accurate details may result in delay or sanctions. Plaintiff Defendant # 1 Defendant # 2 NAME of party or counsel: PHONE #: Companion Actions (short title & court file no. include third party actions) I certify that I have accurately answered all of the questions and that I have consulted with all other counsel / parties in this and any companion actions regarding the following: 1. Type of Case: Motor Vehicle Other Personal Injury Contract Professional Negligence Wrongful Dismissal Real Estate Construction Other (specify): 2. Mediation Mediation is complete and a report filed with the co-ordinator Mediation is scheduled and Form 24.1A has been filed. A court order has exempted this action from mediation A court order permits the action to be set down without mediation This action is exempt from mediation pursuant to Rule 24.1.04 (2) 3. Discovery Are discoveries complete? Yes No Are undertakings answered? Yes No
Is documentary production complete? Yes No 4. Motions 5. Experts Are any motions required? Yes No Have all expert reports been exchanged? Yes No 6. Timetable If any of the above are outstanding, is there a timetable in place for completion prior to the pre-trial? Yes No 7. Pre-trial Time 8. Pre-trial dates Estimated time requested for pre-trial: 1 hour 1.5 hours other: The following are preferred pre-trial dates on which all parties are available: (list 3 dates at least 2 weeks apart): The following are dates on which the parties are not available: A copy of this form will be served on all other parties and filed with the trial record. Date: Signature of party or counsel
SUPERIOR COURT OF JUSTICE (East Region Ottawa) PRE-TRIAL MEMORANDUM Court File No: Title of Proceeding: Jury Non-Jury Bilingual Date of pre-trial: Time: Companion Actions (short title & court file no. include third party actions) PRE-TRIAL CONFERENCE BRIEF ON BEHALF OF Filed by: This party acknowledges that: Pleadings are in order Motions are complete Documents and/or other productions are complete Oral or written examinations are complete Transcripts are available Notices to Admit and responses are complete Mediation has taken place Expert Reports have been exchanged Counsel attending the pre-trial will have carriage of the trial I will be representing myself at the trial List parties and counsel: Party Represented by:
List parties and counsel in companion actions if any: PART I SETTLEMENT BRIEF a) Concise statement of the material facts, clearly specifying which facts are controversial and which are not: b) Concise statement of the legal issues and overview (without argument) of the parties positions on the legal issues: c) Concise summary of the evidence to be called. (Complete Appendix A list of every witness that may be called, including estimated length) d) Attach relevant portions only of transcripts, experts reports or documents relevant to understanding the issues. PART II TRIAL MANAGEMENT BRIEF a) What if any steps remain to be completed before trial? (Complete Appendix B timetable for completion of steps before trial) b) Agreed estimate of length of time for trial: If no agreement: plaintiff s estimate: Defendant s estimate: c) Have counsel, witnesses and experts confirmed availability for trial? Yes No d) Provide any other information relevant to scheduling a trial:
Date: Signature of party or counsel
Court File No: APPENDIX A: List of witnesses that may be called at trial Name of witness Witness to be called by Estimated length
Court File No: APPENDIX B: Remaining steps to be completed in this action Remaining Step Party Responsible Deadline
SUPERIOR COURT OF JUSTICE (East Region Ottawa) PRE-TRIAL CONFERENCE REPORT TO THE TRIAL JUDGE Court File No: Pretrial judge or master: Date of Pre-trial: Trial Date: Short Title: Jury Non-Jury Bilingual Companion Actions (short title & court file no. include third party actions) 1. Estimated length of trial: 2. List of witnesses that may be called and estimated length of time Attached: Yes No 3. Have parties, counsel, witnesses and experts confirmed availability for trial? Yes No 4. Are there any steps to be completed prior to trial? Yes No If yes attach appendix B list of steps to be completed 5. Are there any other issues that the trial judge or trial office should be aware of? (eg. interpreter, large court room, audiovisual or technical issues, witnesses testifying by videoconference, etc.) CERTIFICATE
The parties in person or by counsel, hereby confirm the contents of this report, acknowledge their obligation to be ready to proceed on the date fixed for trial and, in the case of counsel, undertake to advise their clients of the reports contents and that adjournments of trial dates will only be granted in extraordinary circumstances. Party: Party: Signature of party or counsel Party: Signature of party or counsel Party: Signature of party or counsel Signature of party or counsel Date: judge s or master s signature
Court File No: APPENDIX A: List of witnesses that may be called at trial Name of witness Witness to be called by Estimated length
Court File No: APPENDIX B: Remaining steps to be completed in this action Remaining Step Party Responsible Deadline