Supreme Court Civil Rules Effective July 1, 2010 Frequently Asked Questions Q: When does the List of Documents need to be filed? It has to be prepared by each party of record within 35 days of the close of the pleadings period. Is there a deadline for service and does it need to be filed? A: Pursuant to Rule 7‐1(1) the List of Document in Form 22 must be prepared and served on all parties of record within 35 days of the end of the pleadings period. The list of documents does not need to be filed. A: Yes. Rule 15(b)(iii). A: Yes the $80 is applicable on all Notices of Application, just as our current rules make no provision for an amended Notice of Motion Q: Does a filed copy of the Notice of Application need to be submitted with the Application Record? Q: The new rules do not provide for filing an amended Notice of Application, does this mean there is an $80 fee if it is amended? Q: In the rules it says that if parties go through the process of voluntary mediation before starting an action, the filing fee for the Notice of Civil Claim &/or the Response to Civil Claim is waived – how is this proven at the counter so as to have the fee waived? A: By filing a certificate of mediation in Form 124 Q: The date format that they appear to be using throughout the new court forms, is [dd/mmm/yyyy]. How stringent they are with this format? Will it be an issue if we use another format? Also, for the introductory part of an Order Made After Application [Form 35] or Order After Trial [Form 48], where it states "Before The Honourable Justice __________", this differs from the old forms where it says Before The Honourable Mr. Justice _____ or The Honourable Madam Justice ________". Can you confirm we are no longer required to specify Mr. or Madam. A: In terms of a litigant asking whether his or her form will be rejected on the basis of form (or substance), only a legal opinion will do. Although there may be a range of statutory and/or common law that would need to be considered to provide a definitive opinion on the matter, anyone faced with this inquiry may wish to review section 28(1) of the Interpretation Act which provides that where a form is prescribed by or under an enactment, deviations from the form do not invalidate it, provided that those deviations do not affect the substance of the form and are not calculated to mislead. Similarly, it may be relevant to consider whether a form complies with Rule 22‐3 (civil) and 21‐1 (family). Copyright 2010 Dye & Durham Corporation Q: Transitional Pleadings ‐ if you have filed and served a Writ/Claim and received a Statement of Defence and set a trial date for after Oct 1 2010 do you need to follow the new rules from where you are at with the litigation? Q: If a judge or master signs the Order on the Notice of Application does it have to be entered? i.e. filed in the courts after signing Q: If the judge or master makes many variations to the order requested at an application, do you have to draft a new (clean) order in Form 35? A: If the trial in the transitional proceeding has been set to commence after October 1, 2010, the NEW Rules apply and therefore a Trial Management Conference is required, unless otherwise ordered. A: Yes, the Notice of Application must be submitted for entry at the registry A: Pursuant to Rule 13‐1(4): if an order has been made substantially in the same terms as requested, and if the court endorses the notice of application, petition or other document to show that the order has been made or made with any variations or additional terms shown in the endorsement, it is not necessary to draw up the order, but the endorsed document must be filed. In the case where many variations have been made, the court may order that a new (clean) order be drafted. Q: What about a trial brief, do you have to file if you A: A Trial Brief is required when a Trial Management already have a notice of trial set for after July 1 2010? conference has been set to take place. If the set trial date is before October 1, 2010, then the TMC is optional. If you opt to have a TMC then a Trial Brief must be prepared. If the trial is scheduled for after October 1st, 2010 then the TMC is required, unless otherwise ordered, and the Trial Brief must be prepared. Q: If the trial is scheduled after October 1, 2010‐ do the A: The service deadline after July 1, 2010 of expert service deadlines for expert evidence change? reports is as follows: Rule 11‐6(3) – unless the court otherwise orders, at least 84 days before the scheduled trial date, an expert’s report, must be served on every party of record, along with written notice that the report is being served under this rule. Rule 11‐6(4) – unless the court otherwise orders, if a party intends to tender an expert’s report at trial to respond to an expert witness whose report is served under subrule (3), the party must serve on every party of record, at least 42 days before the scheduled trial date Q: Can an insurance adjuster attend the Case Planning A: Pursuant to Rule 12‐2(5) – a party of record need Conference or the Trial Management Conference not attend the trial management conference in person instead of the Party of Record? if the party is represented by a lawyer and one of the following is readily available for consultation during the TMC, either in person or by telephone: (a) the party; Copyright 2010 Dye & Durham Corporation (b) an individual who (i)
has full authority to make decisions for that party concerning the action, or (ii)
has ready access to a person who has, or to a group of persons who collectively have, full authority to make decisions for that party concerning the action. A: Yes, Rule 6‐1(1) – subject to Rules 6‐2(10) and 7‐7(5), a party may amend the whole or any part of a pleading filed by the party (a) once without leave of the court, at any time before the earlier of the following: (i)
the date of service of the notice of trial, and (ii)
the date a case planning conference is held, or (b) after the earlier of the dates referred to in paragraph (a) of this subrule, only with (i)
leave of the court, or (ii)
written consent of the parties of record. A: Correct, the Appearance has been replaced with the Response to Civil Claim in Form 2 or the Response to Petition in Form 67. A: Yes, Form 23 A: Yes, the Notice to Produce form is Form 43. There is no Demand for Discovery of Documents form under the new rules. A: The Mediation process does remain unchanged from the current rules. A: Under the transition rules, if a step taken in the proceeding before July 1, 2010 creates a right or obligation that takes effect before Sept 1, 2010, the old rules apply. One could argue that filing a Notice of Trial before July 1 creates a right under current Rule 22(3)to file a 3d party claim within 120 days of the scheduled trial date and if that date (120 days before trial date) falls before Sept 1, 2010, you have until that date to file your 3rd party claim. So, for example, you file a notice of trial on June 1, 2010 and the trial is set for December 1, 2010. You Q: If we amend our Notice of Civil Claim ‐ can we do so once without Leave? Q: Is there no longer an Appearance, just a Response? Q: Is there an Appointment to Examine for Discovery? Q: What about Notice to Produce and Demand for Discovery of Documents form Q: Does the mediation process and relevant document remain unchanged from the current rules? Q: Under the old rules, a party could be brought in up to 120 days before trial. Under the new rules, a party can, without leave of the court, (Rule 3‐5) within 42 days after being served with the notice of civil claim, commence 3rd party proceedings. What about initiating 3rd party proceedings wherein the claim was filed prior to July 1, 2010? What is the deadline for initiating 3rd party proceedings? I heard somewhere that any 3rd party proceedings for existing actions had to be filed by April 30, 2010. Is this accurate? Copyright 2010 Dye & Durham Corporation could argue that you have until August 1, 2010 (approx 120 days before December 1) to file a 3rd party claim. Outside of that scenario, as of July 1, all cases are in the new regime. So if the time to file a 3rd party claim has expired, it seems that one would have to seek leave. Copyright 2010 Dye & Durham Corporation