Practice Direction Concerning Civil Proceedings in Central East Region

Effective January 1, 2017

This Practice Direction applies to all civil proceedings in the Superior Court of Justice, Central East Region, effective January 1, 2017. It supersedes all previous region-specific Practice Directions concerning civil proceedings for the Central East Region issued prior to January 1, 2017, which are hereby revoked.

Counsel and parties are advised to refer to the relevant Parts of the Consolidated Provincial Practice Direction in Civil Proceedings as well as the Consolidated Practice Direction for Divisional Court Proceedings which are available on the Superior Court of Justice website at: www.ontariocourts.ca/scj.

Part I: General

  1. In addition to this Practice Direction, counsel and parties to civil proceedings are advised to refer to the Consolidated Provincial Practice Direction in Civil Proceedings.
  2. In this Practice Direction, any reference to “counsel” includes a self-represented party.

Part II: Motions to Transfer

  1. All requests for a transfer of a civil proceeding from one county to another shall be pursuant to rule 13.1.02 of the Rules of Civil Procedure. The motion will be granted or denied based on its merits. Counsel and parties are advised to refer to Part III of the Consolidated Provincial Practice Direction which prescribes specific requirements for motions to transfer a civil proceeding.

Part III: Mortgage Proceedings

  1. Pursuant to rule 13.1.01(3) of the Rules of Civil Procedure, Barrie or Oshawa are designated as the places where mortgage proceedings may be commenced for property located anywhere in the Central East Region.

Part IV: Construction Liens

  1. Construction lien pre-trials will be scheduled at intervals at the Newmarket, Barrie, and Oshawa judicial centres.  To ensure continuity and efficient management, the pre-trials will be assigned to designated judges at each of the centres.
  2. Construction lien pre-trials in Peterborough, Cobourg and Lindsay will be scheduled on an “as needed basis” with the Trial Co-ordinator.
  3. Construction lien pre-trials from Bracebridge will be scheduled to be heard in Barrie.
  4. In order to accommodate counsel, the pre-trials in construction lien matters will be scheduled on different weeks at each of the judicial centres.  For a list of the scheduled dates for the pre-trials, and telephone numbers of the Trial Co-ordinator for each judicial centre, please see the “Contacting the Court” section of the Court’s website at: www.ontariocourts.ca/scj/contacting/.

a) First Pre-Trial Conference

  1. It is preferred that counsel who will appear at trial and their clients attend the first pre-trial conference.  Every effort will be made to discuss a resolution of the proceeding at this first appearance.  In the event that a settlement cannot be achieved at this stage, then the pre-trial judge shall order:
    1. the exchange of Affidavits of Documents together with a copy of each document referred to in Schedule A;
    2. the date for examinations, as well as the answering of undertakings;
    3. the date for a motion relating to refusals on examinations and any other contemplated motions;
    4. that a “Scott” Schedule and any responding Schedule be prepared and delivered prior to the next appearance date;
    5. the next pre-trial date; and,
    6. that Plaintiff’s counsel take out an order incorporating the above-noted terms.

b) Second Pre-Trial Conference

  1. It is mandatory that all counsel who will appear at trial and their respective clients attend the second (and, if necessary, any subsequent) pre-trial conference.
  2. The pre-trial judge will discuss and assess the progress of the proceeding and will consider an appropriate award of costs for non-compliance with the First Appearance Order.
  3. At the second pre-trial conference, the parties will be required to detail their respective positions with supporting documentation.
  4. In the event that the proceeding is not settled at the conclusion of this second or subsequent pre-trial conference, the pre-trial conference judge shall fix a date for trial within the Civil Trial Sittings.

Part V:  Ex Parte Motions in Writing

  1. All ex parte motions in writing must be filed with the court office and payment of the applicable filing fee made.  They will be put before a judge in chambers for review in the normal course.  Ex parte motions may not be “filed” by delivering them to the Trial Co-ordinator for a judge to review, or by sending them by email or otherwise directly to a judge of the court.

Part VI: Civil Proceedings in Newmarket

a) Elimination of “Placeholder” Motions

  1. Where counsel or a party has booked with the Trial Co-ordinator a date for the hearing of a motion, a Notice of Motion must be filed (and the necessary filing fee paid) no later than 10 days after the motion date is booked. Unless a Notice of Motion is filed (and the necessary payment made) within this time period, any booked motion date will be vacated without notice to counsel or the moving party. The booking of “placeholder” motions will cease.

b) Civil Motions Consent Orders

  1. Where counsel and/or the parties have agreed to a consent order in a civil motion scheduled for hearing, a fully executed consent, together with a draft order, shall be emailed to the court at Newmarket.SCJ.TC@ontario.ca, along with the motion confirmation form (Form 37B) by 2 pm three days before the scheduled hearing, as required by rule 37.10.1. The materials will be put before the presiding judge in chambers for review. If satisfied that the order should issue, the presiding judge will sign the draft order. Counsel for the moving party will be notified by the court that the order is ready to be picked up and entered. Unless otherwise advised by the court, counsel and/or the parties do not have to attend at court on the scheduled hearing date, which shall be vacated.
  2. Where counsel and/or the parties have resolved a motion scheduled for hearing by way of a fully executed consent and draft order, after the motion confirmation form is filed, counsel for the moving party may attend at 9:00 a.m. on the morning scheduled for hearing of the motion, and file the consent and draft order with the courtroom registrar. The consent and draft order will be put before the presiding judge in chambers for review. If the presiding judge is satisfied that the order should issue, he/she will sign the draft order. The registrar will return the signed order to counsel to be entered. Counsel is not required to remain in the courtroom after receiving the signed order.

Part VII: Long Motions and Motions for Summary Judgment in Barrie, Bracebridge, Cobourg, Lindsay, Newmarket, Oshawa and Peterborough

  1. Dates for all long motions (exceeding one hour) and all motions for summary judgment must be obtained from the Trial Co-ordinator.
  2. For all motions exceeding one hour and for all summary judgment motions, counsel (and parties who are self-represented) shall file a factum no longer than 25 pages.  In addition to a factum, counsel are to consult with each other and where possible file a Joint Compendium, which shall contain the key material documents to be relied on during oral argument.  Where counsel cannot agree on a Joint Compendium, each will file their own separate Compendium, which shall contain the key material documents to be relied on during oral argument. The Compendium should not exceed 30 pages in length.
  3. Where counsel intends to rely on case law, he or she shall file a case brief containing only those cases that will be referred to in oral argument, with the relevant passages side-barred.
  4. Counsel are encouraged to file an electronic version of the factum, the Joint Compendium (or separate Compendium), and case brief on CD, DVD or USB key. The electronic documents must be submitted in either Microsoft Word format (.doc or .docx) or text searchable PDF format. The CD, DVD or USB key should be accompanied by a covering letter which identifies the materials contained on the CD, DVD or USB key, as follows:

USB Key:  The cover letter should include a list of the files contained on the USB key, along with the title of proceedings, Court File #, Counsel Name(s), where applicable, and Party Name.  If possible, the key should be labelled with the short style of cause and the Court File #.

CD or DVD:  The CD or DVD should be labelled with the title of proceedings, Court File #, Counsel Name(s), where applicable, and Party Name.  Include a list of the files contained on the CD or DVD in the cover letter.

Part VIII: Pre-Trial Conferences

a) Purpose

  1. The purpose of this Part is to ensure that civil cases proceed to trial only after they have been properly pre-tried and endorsed as ready for trial by the presiding pre-trial conference judge. This will be achieved by the assignment of civil pre-trial conferences to judges who are experienced in civil litigation matters. Those judges will conduct all pre-trial conferences in the Region. It will also be achieved by the establishment of a Central East Trial Scheduling Court (“CETSC”), which will be held in Oshawa and presided over by the Regional Senior Judge or a judge designated by him or her. The CETSC replaces all other Trial Scheduling Courts in the Region and they will be discontinued.

b) Obtaining a Pre-Trial Conference Date

  1. All civil cases will proceed to a pre-trial conference once they are certified ready for trial by the filing of a Trial Record.
  2. The existing Trial Scheduling Notice and Consent Form is replaced with a Pre-Trial Conference Confirmation Form. Counsel are required to contact the Trial Co-ordinator in the centre where the action is outstanding, to book a pre-trial conference date that is agreed to by all counsel. Counsel are to record this date on the Pre-Trial Conference Confirmation Form, and transmit it to the Trial Co-ordinator within seven days of booking the pre-trial conference date to the appropriate court location.

Barrie/Bracebridge: Barrie.SCJ.TC@ontario.ca (705-739-6099)
Newmarket: Newmarket.SCJ.TC@ontario.ca (905-853-4863)
Oshawa: Oshawa.SCJ.TC@ontario.ca (905-743-2652)
Peterborough/Cobourg/Lindsay: Peterborough.SCJ.TC@ontario.ca (705-745-3526)

  1. In the event that counsel who seeks a pre-trial conference date cannot obtain the agreement of opposing counsel to one of the dates provided by the Trial Co-ordinator, counsel seeking to book the pre-trial conference shall notify the Trial Co-ordinator who will add the case to the next available CETSC.
  2. All counsel are required to appear at the CETSC. Counsel opposing the fixing of the pre-trial date must establish good reason why the pre-trial conference cannot proceed on one of the dates provided by the Trial Co-ordinator. The presiding judge shall fix a date for the pre-trial conference. If the presiding judge is satisfied that no good reason was established for counsel’s failure to agree to one of the dates provided by the Trial Co-ordinator, the presiding judge may make a costs award against the offending party.

c) Pre-Trial Conference Memorandums

  1. Counsel shall file their pre-trial conference memorandums with the court administration office in the centre where the action is outstanding, no later than five (5) business days before the pre-trial conference. Pre-trial memorandums will not be accepted for late filing. This filing requirement is intended to ensure that the pre-trial conference judge has adequate time to review the pre-trial conference memorandums in advance of the pre-trial conference.
  2. If counsel fails to file the pre-trial conference memorandum in time, the pre-trial conference will be cancelled by the Trial Co-ordinator. Cancellation of the pre-trial conference, absent exceptional circumstances, may result in a costs award against the offending party.
  3. If a pre-trial conference is cancelled because counsel for a party failed to file the pre-trial conference memorandum in time, counsel for any other party to the action may unilaterally fix a fresh pre-trial conference date with the Trial Co-ordinator.
  4. Where a second pre-trial conference date is cancelled due again to late filing of the pre-trial conference memorandum, the Trial Co-ordinator will put the case to be spoken to at the next available CETSC. All counsel are required to attend the CETSC.

d) The Pre-Trial Conference

  1. To ensure that adequate time is allocated for a meaningful pre-trial conference, generally no more than four (4) pre-trial conferences per day will be scheduled before a single judge.
  2. The pre-trial conference judge will, in accordance with rule 52.07, assist the parties in working toward a full or partial resolution of the issues in the action. In addition, the pre-trial conference judge will make such case management orders as are appropriate to ensure that the case is ready for trial. This may necessitate the holding of more than one pre-trial conference in a case.
  3. The pre-trial conference judge will endorse that the case is ready for trial only when he or she is satisfied of this. The pre-trial conference judge will complete a Pre-Trial Conference Report, which will be provided to the judge presiding at the CETSC, and also to the trial judge. It will include the estimated length of the trial.

e) Central East Trial Scheduling Court

  1. Once the pre-trial conference judge has endorsed that the case is ready for trial, the case will be listed for appearance in the CETSC. The CETSC will take place in Oshawa at least once per month, usually on the last Thursday of the month. It will be presided over by the Regional Senior Judge or his or her designate.
  2. Counsel of record for each party is expected to attend the CETSC. While it is preferable that counsel attend in person, attendance by telephone conference call at pre-booked times during the course of the day is permissible. Arrangements for attendance by telephone conference call can be made through the Trial Co-ordinator in the centre where the action is outstanding, or the Oshawa Trial Co-ordinator, no later than the Friday before the scheduled CETSC. In the event that counsel of record is not available to attend in person or by telephone conference call, a fully instructed lawyer acting as counsel’s agent must attend the CETSC in person.
  3. The purpose of the CETSC is to confirm the length of the trial and to ensure that the case is ready for trial. Civil cases will be listed to be tried at the twice-yearly regional Civil Trial Sittings. The judge presiding at the CETSC will canvass with counsel on which Civil Trial Sittings list the action will be placed. If counsel has more than one case on a particular Civil Trial Sittings list, the presiding judge must be informed of all other cases counsel has on that list and their present status. The purpose of such enquiry is to avoid the adjournments that result when counsel set multiple cases for trial at the same Civil Trial Sittings.
  4. If a trial is estimated to take longer than three weeks, the judge presiding at the CETSC will decide whether the case can be tried within the twice-yearly Civil Trial Sittings, or whether the Regional Senior Judge should be asked to assign a fixed trial date.
  5. A further purpose of the CETSC is to canvass whether there is any reason why a case cannot be tried at any of the courthouses in the region, so that courtroom and judicial resources can be maximized. Counsel and the parties will be required to show good reason why a case must be tried at a particular courthouse.

f) Adjournments

  1. Counsel should be prepared to proceed to trial during the Civil Trial Sittings to which the case has been assigned or on the fixed date set. Any requests to adjourn a trial must be brought at a CETSC. Counsel should expect that adjournments sought when the case is called for trial will not be granted, absent compelling reasons.

Dated: January 1, 2017

Heather J. Smith
Chief Justice
Superior Court of Justice (Ontario)

Michelle Fuerst
Regional Senior Judge
Superior Court of Justice, Central East Region