ONTARIO REGULATION 198/05

made under the

COURTS OF JUSTICE ACT

Made: April 4, 2005 Approved: May 4, 2005 Filed: May 6, 2005 Printed in The Ontario Gazette: May 21, 2005 Amending Reg. 194 of R.R.O. 1990 (Rules of Civil Procedure) Note: Regulation 194 has previously been amended. Those amendments are listed in the Table of Regulations Legislative History Overview which can be found at www.e-Laws.gov.on.ca. 1. Rule 14.08 of Regulation 194 of the Revised Regulations of Ontario, 1990 is amended by adding the following subrules: (4) Subrules (1) and (2) are subject to rule 78.06, which provides that in certain circumstances the registrar shall make an order dismissing the action as abandoned. Revocation (5) Subrule (4) is revoked on May 6, 2008. 2. Rule 24.1.01 of the Regulation is amended by striking out establishes a pilot project for mandatory mediation in case managed actions and substituting provides for mandatory mediation in case managed actions. 3. (1) Subrule 24.1.04 (2) of the Regulation is amended by adding the following clause: (0.a) actions governed by Rule 78 (Toronto Civil Case Management Pilot Project); (2) Rule 24.1.04 of the Regulation is amended by adding the following subrule: Revocation (4) Clause (2) (0.a) is revoked on May 6, 2008. 4. Rule 24.1 of the Regulation is amended by adding the following rule: SPECIAL PROVISIONS FOR ACTIONS GOVERNED BY RULE 78 Application 24.1.09.1 (1) This rule (rule 24.1.09.1) applies to actions governed by Rule 78 (Toronto Civil Case Management Pilot Project). Time Limit and Notice (2) Despite subrules 24.1.09 (1) and (5), (a) in the case of a wrongful dismissal action, a mediation session shall take place within 150 days after the close of pleadings, unless the court orders otherwise, and the plaintiff shall file the notice described in subrule 24.1.09 (5) at least 30 days before the date of the mediation session; (b) in the case of an action governed by Rule 76 (Simplified Procedure) that is assigned to mandatory mediation by the regional senior judge, a mediation session shall take place within 150 days after the close of pleadings, unless the court orders otherwise, and the plaintiff shall file the notice described in subrule 24.1.09 (5) at least 30 days before the date of the mediation session; and (c) in the case of any other action, a mediation session shall take place at the stage at which the parties agree that mediation is most likely to be effective, but in any case within 90 days after the action is set down for trial, unless the court orders otherwise, and the plaintiff shall file the notice described in subrule 24.1.09 (5) at least 30 days before the date of the mediation session. Revocation (3) This rule (rule 24.1.09.1) is revoked on May 6, 2008. 5. (1) Subrule 48.14 (3) of the Regulation is amended by adding the following clause: (a.1) in an action under Rule 78, documents have been filed in accordance with rule 78.08;

(2) Rule 48.14 of the Regulation is amended by adding the following subrule: Revocation (3.1) Clause (3) (a.1) is revoked on May 6, 2008. 6. (1) Rule 77.01 of the Regulation is amended by adding the following subrules: 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. Revocation (1.3) Subrule (1.2) is revoked on May 6, 2008. (2) Clauses 77.01 (2) (a), (b), (d.0.4) and (d.0.5) of the Regulation are revoked. 7. Rule 77.11 of the Regulation is amended by adding the following subrules: Exception (1.3) For greater certainty, subrule (1.1) does not apply to an action that is governed by Rule 78. Revocation (1.4) Subrule (1.3) is revoked on May 6, 2008. 8. Rule 77.14 of the Regulation is amended by adding the following subrules: 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. Revocation (12) Subrule (11) is revoked on May 6, 2008. 9. The Regulation is amended by adding the following Rule: RULE 78 TORONTO CIVIL CASE MANAGEMENT PILOT PROJECT APPLICATION AND INTERPRETATION Scope 78.01 (1) This Rule applies to actions commenced in the City of Toronto on or after December 31, 2004. Exception (2) This Rule does not apply to, (a) actions placed on the Commercial List established by practice direction in the Toronto Region; (b) actions under Rules 74 and 75 (Estates); (c) actions under Rule 64 (Mortgage Actions); (d) actions under Rule 76 (Simplified Procedure); (e) actions under the Construction Lien Act, except trust claims; (f) actions under the Bankruptcy and Insolvency Act (Canada); and (g) actions certified as class proceedings under the Class Proceedings Act, 1992. Class Proceedings Act, 1992 (3) This Rule applies to an action commenced under the Class Proceedings Act, 1992 only if certification as a class proceeding has been denied. Conflict with Other Rules (4) In the event of conflict between a provision of Rules 1 to 77 and a provision of this Rule, this Rule prevails. PURPOSE

78.02 The purpose of this Rule is to establish a pilot project under which the parties will have the greater responsibility for managing actions commenced in the City of Toronto and moving them to trial or other resolution, and the court will provide partial or full case management for such actions only where a need for the courts intervention is demonstrated. DEFINITIONS 78.03 In rules 78.03 to 78.12, 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) timetable means a schedule for the completion of one or more steps required to advance the action (including delivery of affidavits of documents, examinations under oath, where available, or motions), established by, (a) an order of a judge or case management master, or (b) a written agreement of the parties that is not contrary to an order. (calendrier) CASE MANAGEMENT POWERS Generally 78.04 (1) A judge or case management master may, (a) extend or abridge a time prescribed by an order or the rules; (b) adjourn a case conference; (c) set aside an order made by the registrar; (d) amend a timetable made under Rule 77 or under this Rule; (e) make orders, impose terms, give directions and award costs as necessary to carry out the purpose of this Rule. Case Management Master (2) A case management master has power, (a) to hear motions that are within the jurisdiction of a master under subrule 37.02 (2); (b) to preside and make orders at a status hearing under rule 48.14; and (c) to preside and make orders at a pre-trial conference that are within the jurisdiction of a case management master. OTHER MATTERS File Number for Third and Subsequent Party Claims 78.05 (1) Third and subsequent party claims shall be given the same file number as the main action, followed by a suffix letter. Format of Documents (2) The form prescribed in this Rule and notices, certificates and orders referred to in it may be single spaced and need not have a backsheet. DISMISSAL BY REGISTRAR Dismissing Action as Abandoned 78.06 (1) The registrar shall make an order dismissing an action as abandoned if the following conditions are satisfied, unless the court orders otherwise: 1. More than two years have passed since the date the originating process was issued. 2. No statement of defence has been filed. 3. The action has not been disposed of by final order or judgment. 4. The action has not been set down for trial or summary trial. 5. The registrar has given 45 days notice that the action will be dismissed as abandoned. Service on Parties (2) The registrar shall serve a copy of the order made under subrule (1) on the parties. Effect on Subsequent Action (3) The dismissal of an action as abandoned has the same effect as a dismissal for delay under rule 24.05.

POWERS OF COURT ON MOTION TO DISMISS FOR DELAY 78.07 If a defendant moves to have an action dismissed for delay and the court is satisfied that the action should proceed, the court may, (a) establish a timetable (Form 78A) for the action; (b) order a case conference in accordance with rule 78.09, but only if it is impractical to establish a timetable; or (c) make such other order as is just. STATUS HEARING Effect of Filing Timetable 78.08 (1) If a status hearing has been requested under subrule 48.14 (5) and a party files the documents described in subrule (2) at least seven days before the date of the hearing, the hearing shall be held in writing and without the attendance of the parties, despite anything in rule 48.14, unless the court orders otherwise. (2) The documents mentioned in subrule (1) are: 1. A timetable (Form 78A), signed by all the parties. 2. A draft order establishing the timetable. (3) The timetable shall, (a) identify the steps to be completed before the action will be ready to be set down for trial; (b) show the date or dates by which the steps will be completed; and (c) show a date, which shall be no more than 12 months after the date of the status hearing, before which the action shall be set down for trial. Case Conference (4) If no documents described in subrule (2) are filed and the presiding judge or case management master at the status hearing under rule 48.14 is satisfied that the action should proceed, he or she may, (a) make an order under clause 48.14 (8) (a); (b) order a case conference in accordance with rule 78.09, but only if it is impractical to establish a timetable; or (c) make such other order as is just. CASE CONFERENCE Powers of Judge and Case Management Master 78.09 At a case conference convened under clause 78.07 (b), clause 78.08 (4) (b), clause 78.10 (3) (b) or clause 78.12 (6) (a), a judge or case management master may, (a) create a timetable for the action; (b) review and, if necessary, amend an existing timetable; (c) require written reports as to compliance with any directions that are given; (d) on consent of the parties, make an order for interlocutory relief; and (e) make an order under rule 78.12 (assignment to case management under Rule 77). PRE-TRIAL CONFERENCE Notice 78.10 (1) After an action is set down for trial, the registrar shall give the parties 90 days notice to appear before a judge or case management master for a pre-trial conference under Rule 50. Materials to be Filed (2) At least five days before the pre-trial conference, each party shall file with proof of service a pre-trial conference brief containing concise statements, without argument, of the following matters: 1. The nature of the case. 2. The issues raised and the partys position. 3. The names of the witnesses that the party is likely to call at the trial.

4. The steps that need to be completed before the action is ready for trial. Decision of Judge or Case Management Master (3) If the action is not settled at the pre-trial conference, the judge or case management master may, (a) establish a timetable and, subject to the direction of the regional senior judge, set a peremptory date for trial; (b) order a case conference in accordance with rule 78.09, but only if it is impractical to establish a timetable; or (c) make such other order as is just. (4) If the judge or case management master has set a date for trial under subrule (3), he or she shall complete a pre-trial conference report, (a) stating what steps need to be completed before the action is ready for trial and how much time is needed to complete those steps; (b) stating the anticipated length of the trial; and (c) setting out any other matter relevant to scheduling the trial. (5) A copy of the pre-trial conference report shall be placed with the trial record. Certificate (6) The following persons shall certify, on the copy of the pre-trial conference report that is to be placed with the trial record, that they understand the contents of the report and acknowledge the obligation to be ready to proceed on the date fixed for the trial: 1. Each lawyer who represents a party. 2. Each party who is not represented by a lawyer. Duty of Lawyer (7) Each lawyer who represents a party shall, in addition to giving the certificate described in subrule (6), undertake to the court to advise the party of, (a) the contents of the pre-trial conference report; and (b) the obligation to be ready to proceed on the date fixed for the trial. TIMETABLE Amendment 78.11 (1) A timetable that is established under this Rule by order of a judge or case management master may be amended by the parties, by a written agreement, unless the order expressly prohibits amendment. (2) An agreement to amend a timetable established under rule 78.08 shall not amend the date before which the action shall be set down for trial. Non-Compliance (3) If a party fails to comply with a timetable that is established under this Rule, the court may, on any other partys motion, (a) stay the partys action; (b) dismiss the partys action or strike out the partys defence; or (c) make such other order as is just. ASSIGNMENT TO CASE MANAGEMENT UNDER RULE 77 On Consent of Parties 78.12 (1) If all the parties consent in writing, a judge or case management master may, on a partys motion, assign one or more actions to case management in accordance with Rule 77. (2) A motion under subrule (1) shall be made in writing, without a supporting affidavit, and the moving party shall file, (a) the written consent of the parties; and (b) a bound and tabbed copy of all the pleadings. Obstruction

(3) The judge or case management master may, on a partys motion or on his or her own initiative, assign one or more actions to case management in accordance with Rule 77 if a party has taken steps that amount to chronic and substantial obstruction of the action, in the case of a single action, or of one or more actions, in the case of two or more. Criteria (4) In considering whether to assign an action to case management under subrule (1) or (3), the judge or case management master shall have regard to all the relevant circumstances, including the criteria set out in subrule 77.09.1 (5). Effect of Assignment (5) When an action is assigned to case management in accordance with Rule 77 under subrule (1) or (3), that Rule applies to the action with necessary modifications, and the judge or case management master may include any necessary directions in the order. Case Conference or Other Order (6) On a motion under subrule (1) or (3), the judge or case management master may, (a) if the action is not being assigned to case management in accordance with Rule 77, order a case conference in accordance with rule 78.09, but only if it is impractical to establish a timetable; or (b) make such other order as is just. ADVISORY COMMITTEE 78.13 The regional senior judge for the Toronto Region shall appoint an advisory committee composed of such members of the bench, the bar and the public and such employees of the Ministry of the Attorney General as are necessary to monitor and evaluate the operation of this Rule. REVOCATION 78.14 This Rule is revoked on May 8, 2008. 10. The Regulation is amended by adding the following Form:

FORM 78A TIMETABLE Courts of Justice Act Insert regs\Graphics\Source Law\2005\198\198078Aae.tif