Consolidated Practice Direction Concerning the Commercial List

Effective July 1, 2014 This Practice Direction applies to matters on the Commercial List in the Toronto Region.

It supersedes all Toronto Region Practice Directions concerning the Commercial List issued before July 1, 2014, which are hereby revoked.

Counsel and parties are advised to refer to the relevant Parts of the Consolidated Provincial Practice Direction the Consolidated Practice Direction for Divisional Court Proceedings as well as any other relevant Toronto region-specific Practice Directions and Guides which are available on the Superior Court of Justice website at: www.ontariocourts.ca/scj.

Part I: Introduction

The Commercial List was established in 1991 for the hearing of certain actions, applications and motions in the Toronto Region involving issues of commercial law. The special procedures adopted for the hearing of matters on the Commercial List expedite the hearing and determination of these matters and have been met with considerable approval. All counsel appearing in matters on the Commercial List are expected to know and follow the current Practice Direction. The Commercial List remains, in the first instance, voluntary, except for bankruptcy matters. Applicants and plaintiffs may continue to set other matters that qualify for the Commercial List down for hearing either on the Commercial List or elsewhere. There is, however, a provision for any party to have a matter transferred to, or removed from, the Commercial List. A continuous re-evaluation process by the court and the Commercial List Users’ Committee determines whether (i) other matters should be added to those matters which may be listed on the Commercial List or (ii) its procedures should be further modified or continued. This Practice Direction is to govern the conduct of matters on the Commercial List subject to further amendments as required.

Part II: Matters Eligible for the Commercial List

  1. Matters which may be listed on the Commercial List are applications, motions and actions which in essence involve the following:
  1. Bankruptcy and Insolvency Act;
  2. Bank Act, relating to realizations and priority disputes;
  3. Bulk Sales Act;
  4. Business Corporations Act (Ontario) and Canada Business Corporations Act;
  5. Companies’ Creditors Arrangement Act;
  6. Limited Partnerships Act;
  7. Pension Benefits Act;
  8. Personal Property Security Act;
  9. receivership applications and all interlocutory motions to appoint, or give directions to, receivers and receiver/managers;
  10. Securities Act;
  11. Winding-Up and Restructuring Act;
  12. Credit Unions and Caisses Populaires Act, relating to credit unions and caisses populaires under administration or that are being wound up or liquidated; and
  13. such other commercial matters as a judge presiding over the Commercial List may direct to be listed on the Commercial List, including: suitably complex cases under the Arthur Wishart Act (Franchise Disclosure), suitable commercial matters under the International Commercial Arbitration Act (Ontario), Arbitration Act, 1991 (Ontario) and Commercial Arbitration Act (Canada). [See 771225 Ontario Inc. v. Bramco Holdings Co. Ltd., [1993] O.J. No. 1772 and Maple Valley Acres Limited v. CIBC, [1992] O.J. No. 2610), Piedra v. TSX Inc., [2009] O.J. No. 5351 (Div. Ct.)].

In considering whether to make a direction under sub-paragraph 1m), the judge may take into account the current and expected caseload of matters listed on the Commercial List.

Part III: Judges, Court Officials, Courtrooms and General Procedures

  1. The Commercial List shall be administered through the facilities of the Commercial List Office, 7th Floor, 330 University Avenue, Toronto M5G 1R7 fax: (416) 327-6228.
  2. Matters listed on the Commercial List, including bankruptcy matters, shall usually be heard in courtrooms at 330 University Avenue, Toronto.
  3. If counsel are aware that a judge sitting on the Commercial List should not hear a particular matter, the Commercial List Office should be advised.
  4. Cooperation, communication and common sense shall continue to be the principles of operation of the Commercial List.

Part IV: Originating Process

  1. Actions and applications under sub-paragraphs 1a) to l) (above) intended to be listed on the Commercial List may be issued in the Commercial List Office. Otherwise, all originating processes shall be issued from the appropriate office of the Superior Court of Justice as provided in the Rules of Civil Procedure.
  2. For all applications, an initial return date must be obtained from the Commercial List Office or selected by counsel in conformity with the provisions of paragraphs 16 to 22 (below).

Part V: Place of Hearing

  1. Only Toronto Region matters can be listed on the Commercial List (unless, for special reasons, authorization is given by the supervising judge). Aside from urgent insolvency matters, there should be a material connection to the Toronto Region over and above the location of counsel. Matters listed on the Commercial List shall only be heard in Toronto.

Part VI: Applications for Transfer to/from the Commercial List

  1. Matters may be transferred to or removed from the Commercial List on a motion to a judge sitting to hear matters on the Commercial List.
  2. A matter may be provisionally transferred to the Commercial List by a judge who is hearing the matter or a proceeding in the matter but who is not sitting to hear matters on the Commercial List, with the consent of all parties appearing. Such provisional transfer shall be for the purpose of bringing an application for transfer in accordance with paragraph 9 by one of the parties or as the judge may direct.
  3. A matter may be transferred to the Commercial List by the Commercial List Office staff if the transfer is on consent of all parties, a Request Form and Case Timetable are fully completed and the matter is a Toronto Region matter which clearly falls within the categories of sub-paragraphs 1a) to l) (above).

Part VII: Court Documents

  1. The name of the court in the title of proceedings of matters listed on the Commercial List shall be: “Superior Court of Justice – Commercial List”. All Notices of Application and Notices of Motion involving the Commercial List shall state that the application or motion will be made to “a judge presiding over the Commercial List at 330 University Avenue, Toronto”.
  2. All parts of the front and the back of a Request Form must be completed for all cases and for each proceeding (including 9:30 a.m. matters, matters added to the Commercial List and all other attendances) and the form must be signed by all counsel or an explanation for not doing so must be given. If all counsel cannot sign the same form, they may sign individual copies. Completed Request Forms may be faxed to the Commercial List Office at (416) 327-6228. Copies of the current Request Forms are available from the Commercial List Office.
  3. For matters that are scheduled for a hearing time of one day or more, the Request Form shall set out an estimate of the amount of time it will take a judge to read the materials in advance.
  4.  A Case Timetable should be completed. If this cannot be done before the matter is first spoken to (it being recognized that the schedule may depend on the setting of a hearing date), a Case Timetable should be agreed among counsel as soon as possible thereafter and a copy sent to the Commercial List Office. In the event that counsel cannot agree on a schedule, counsel should attend before the supervising judge in chambers (see paragraph 26). It is expected that preliminary procedures shall be completed sufficiently in advance of the deadline dates to allow for consideration of the matter by counsel and for some subsequent slippage in the timetable. If a step is not completed in accordance with the Case Timetable, counsel are expected to get the matter back on schedule as soon as possible: (see Re: Mernick (1992), 14 C.B.R. (3d) 263). Copies of the current Case Timetable form are available from the Commercial List Office.

Part VIII: Dates for Applications, Motions and Trials

  1. The Commercial List Office shall maintain the Commercial List. Subject to paragraphs 41 and 42 (below), the office staff, acting under the direction of the supervising judge, may assign initial hearing dates for matters other than trials.
  2. The supervising judge or designate may assign initial hearing dates for matters not assigned by the office staff and for trials which, may be made in chambers at 9:30 a.m.
  3. For trials and trials of issues, a motion to set a hearing date shall be made, unless the matter is otherwise scheduled by the supervising judge or designate in chambers on consent or on the appearance of all parties. The motion should be made to the supervising judge or designate, either as a chambers motion under paragraph 25 (below), or by special appointment. A trial date shall not be set unless the parties have completed a Trial Requirements Memorandum, including a brief outline of the case and its issues and witness time estimates. The Trial Requirements Memorandum form may be obtained from the Commercial List Office.
  4. For a scheduling motion to a judge to be heard in chambers, counsel should try to provide a list of three mutually convenient and disparate dates from which the judge may select. Counsel are expected to check with the Commercial List Office for available dates immediately prior to the motion.
  5. Except where special circumstances otherwise require, in selecting a return date for a matter, counsel are expected to allow reasonable time for all preliminary steps to take place before the return date (see paragraph 14). Counsel are encouraged and expected to consult among themselves in this regard, so that matters can be dealt with on the scheduled return date without further adjournment.
  6. Counsel may specify the return date for a matter as “on a date to be established by the Commercial List Office” if there is no agreement on the return date.
  7.  A list of matters scheduled to be heard the following day will be posted on the bulletin board at 330 University Avenue by 4:00 p.m. Information about matters listed for the following day may also be obtained by calling (416) 327-5045 after 4:00 p.m.

Part IX: Estimates of Required Time

  1. A realistic estimate of the time required for hearing the matter must be stated in the Request Form. If such an estimate cannot be given on the initial return of a matter, the Request Form must be appropriately amended when the matter is subsequently re-scheduled. If all parties do not sign the Request Form, the initial return of the matter shall be for only a 10 minute scheduling hearing. Counsel should allocate the estimated hearing time appropriately among themselves, failing which the court shall assume that counsel have agreed to an equal division of time. If the time estimates in the Request Form becomes obsolete, then it is to be revised by notice to the Commercial List Office, giving the reason for the change. The court expects counsel to adhere to their time estimates.
  2. The court may attempt to fix not only the date, but also the time, of the hearing, in appropriate situations. This shall require the cooperation of all counsel to correctly estimate the time required for their matters, to complete them within the time previously scheduled and to minimize wasted time for all concerned.

Part X: Chambers Matters

  1. Commercial List judges will be available in chambers at 9:30 a.m. on each day to deal with ex parte, urgent, scheduling and consent matters, each of which must take not more than 10 minutes. Counsel must book these chambers matters through the Commercial List Office and these bookings will be made to allow the Chambers Judge to hear all chambers matters by 10:00 a.m. Counsel are expected to have discussed the matter in advance and to have prepared a draft resolution for consideration by the Chambers Judge. Counsel should file the materials for the appointment on the previous day, so that the judge is aware of the nature of the matter to be considered.
  2. Ex parte matters on the Commercial List will be rare. Counsel shall be required to justify the reason for not notifying the respondents. In most cases, notice shall be required, particularly if the matter is part of an ongoing dispute and there are solicitors known to be representing the respondents, even if in respect of other matters.
  3. Motions to have matters listed on the Commercial List under sub-paragraph 1m), should be accompanied by the consent of the other counsel involved or a completed Request Form so that the judge may make an order either granting or refusing the motion.

Part XI: Adjournments and Settlements

  1. Counsel shall be expected to be ready to proceed with matters for which hearing times have been agreed to or set; adjournments of previously scheduled matters shall be granted only in special circumstances and for a material reason. Counsel are expected conscientiously to have sought to resolve most adjournments and waiting periods among themselves before a hearing, in a way which minimizes inconvenience and difficulty for the parties. Parties are expected to have retained counsel promptly and requests for adjournments because counsel have not been retained promptly or because new counsel have been retained just prior to the hearing shall be dealt with accordingly. Applications for adjournments on consent should be forwarded to the Commercial List Office or, if directed by the supervising judge, shall be spoken to at the next available 9:30 a.m. sittings; counsel are expected to ensure that adjournments are sought at the earliest opportunity, so that time is not blocked which could be used for other matters. It is expected that the first counsel to speak to a proposed adjournment shall be in a position to outline the position of other counsel appearing.
  2. If an adjournment of a previously scheduled matter is to be sought or appears likely to be required, the Commercial List Office must be alerted as soon as possible to accommodate rescheduling of another matter or alerting counsel on standby matters.
  3. If a matter is adjourned to permit the continuation of realistic settlement discussions and the matter is not settled within a reasonable time, a report should be made to the supervising judge through the Commercial List Office on the status of those discussions. This report should be made within 30 days and may be made in court, in chambers or by letter, as appropriate.
  4. Where appropriate, matters may be scheduled to be heard on a “standby” basis for a particular date. In these cases, counsel should be prepared to proceed on short notice or they must keep the Commercial List Office advised of times when they become unavailable.
  5. Counsel on Commercial List matters are expected to conscientiously and continuously canvass the matter of settlement and to advise promptly of all concluded settlements, or matters which are reasonably likely to settle, so that other matters may be rescheduled.

Part XII: Judge to Hear Whole Matter

  1. It is anticipated that a judge who determines a substantive component of a proceeding will continue to hear all subsequent substantive components in that proceeding. Arrangements for these subsequent proceedings may be made directly with the Commercial List Office. The continuing judge should be contacted in writing about the nature of the matter to be heard and a list of times which are convenient to all counsel, so that the judge can conveniently schedule the matter or can refer it back to the Commercial List Office for re-assignment. For matters of sufficient complexity or duration, in the event that the original judge is not sitting on the Commercial List at the time or has not then been assigned to a future Commercial List team, a request may be made for the appointment of a new continuing judge.

Part XIII: Case Management

  1. It is expected that most matters of substance and of an ongoing nature on the Commercial List shall be subject to a form of case management by a Commercial List judge. Paragraph 33 already provides for significant informal case management for each case on the Commercial List. When a matter is transferred to the Commercial List, when the trial of an issue is directed or in any other matter where a party moves for case management and a Commercial List judge so directs, a specific case management judge may be appointed.
  2. Where a Commercial List matter is subject to specific case management, a Scheduling Conference (if not already held at the time of transfer or otherwise) shall be held with the case management judge not later than one month after the close of pleadings or the date of the order (referred in paragraph 34) to determine a plan to process the case in a timely and reasonable fashion and to deal with any matters of a procedural nature which should be addressed at an early stage of the proceedings. The prospects for settlement should also be addressed. The results of a Scheduling Conference will be recorded in a Case Timetable.
  3. Counsel will be expected to have conferred among themselves, prior to the Scheduling Conference, for the purpose of preparing a plan to process the case, including a discovery plan pursuant to rule 29.1 and a Case Timetable, for review with the case management judge.
  4. Unless otherwise ordered, a Case Conference shall also be held with the case management judge not later than one month after the completion of discoveries. The plaintiff or applicant shall have the onus of arranging the Case Conference. The purpose of the Case Conference is to monitor the progress of the matter, to canvass settlement or other disposition of all or as many of the issues as possible, and to provide whatever directions as may be necessary or appropriate with respect to the disposition of the matter.
  5. A Case Conference may be held at any other time during the proceeding where the parties consent or where a party moves for the scheduling of a Case Conference and the case management judge so directs.

Part XIV: Commercial List Motions before an Associate Judge

  1. No Commercial List motions should be heard by a associate judge unless referred by a Commercial List judge. The judge should indicate his/her referral by a written endorsement or direction to that effect.
  2. Once there has been a referral from a Commercial List judge, counsel may book a short (two hours or less) associate judge’s motion through the scheduling unit on the 10th Floor at 393 University Avenue, but if the motion is a half day or longer or if a series of motions are anticipated where it would be beneficial for one associate judge to be seized, no such motions shall be booked until a associate judge is assigned by the Team Leader – Toronto associate judges. The assigned Associate Judge’s Registrar will then contact counsel to arrange for scheduling of the motion.

Part XV: Motions for Summary Judgment

  1. If a motion for summary judgment is brought in a proceeding on the Commercial List, a motion date will not in the ordinary course be booked until:
  1. The parties have exchanged all motion materials, on an agreed schedule or one fixed at a 9:30 a.m. chambers appointment, and are sufficiently advanced in the preparation of the motion to crystallize the issues and the evidence relating to them;
  2. A case conference has been booked at which counsel must be prepared to address whether oral evidence should be heard on the motion in accordance with subrule 20.04(2.2), the length of time necessary for the hearing of the motion, judicial preparation time necessary and any other directions that may be required;
  3. The judge hearing the case conference has directed that a motion date be booked, bearing in mind that it is expected that the case conference judge will hear the motion.

Part XVI: Applications

  1. It is expected that applications, which can require some oral evidence, will be managed in the same manner as motions for summary judgment in paragraph 41.

Part XVII: Alternative Dispute Resolution and Pre-Trials

  1. Resort to the techniques of “alternative dispute resolution” (ADR), where appropriate, is recognized and encouraged as an effective aid in the disposition of issues and matters on the Commercial List. Pursuant to Rule 24.01.04(2) (c), mandatory mediation does not apply to cases on the Commercial List.
  2. It shall be the duty of the case management judge and the obligation of counsel to explore methods to resolve the contested issues between the parties, including the resort to ADR, at the case conferences and on whatever other occasions it may be fitting to do so.
  3. At any time, particularly on consent of the parties, the case management judge may refer any issue for ADR, as appears appropriate.
  4. When a matter, or any issue within a matter, has been referred to ADR, counsel shall report to the case management judge at regular intervals as to the progress of the ADR proceedings. The timing of such reports shall be agreed upon between counsel and the case management judge.
  5. The court may schedule intensive pre-trials for either entire cases or for significant matters within cases. These pre-trials should be booked through the Commercial List Office, with enough time for the matters in issue and the possibility of settlement to be canvassed thoroughly. At least five days before the pre-trial, each party shall deliver to the other parties a pre-trial brief containing:
  1. a concise statement of facts including the agreed facts and admissions;
  2. where necessary, a concise summary of the issues;
  3. any outstanding procedural issues;
  4. the current settlement position of each party; and
  5. an estimate of the trial time, including a list of witnesses and an estimate of the time required for hearing the evidence of each.
  1. A trial management conference, which is to be arranged by counsel at least two months before trial, is to be held to deal with arrangements for managing the trial or hearing.

Part XVIII: Materials for use of Court

  1. It is expected that materials filed for the use of the court will be filed with the Commercial List Office at least within the time prescribed by the Rules. Early filing is recommended. All moving party or applicant material must be filed seven days (excluding holidays) before the hearing. All responding material must be filed four days (excluding holidays) before the hearing.
  2. The Commercial List Office should be advised of what specific materials from its files are required for the hearing of any particular proceeding. This is particularly important where the matter is on-going or the materials in the court files are voluminous. It is suggested that counsel co-ordinate on a common numbering scheme for the records, transcripts, factums, authorities and other materials intended for use by the court and that a representative attend at the Commercial List Office before a hearing to ensure that the correct materials are available to the judge.
  3. In appropriate cases, to supplement any required formal record, counsel are requested to consider preparing an informal Compendium of the key materials to be referred to in argument (fair extracts of documents, transcripts, previous orders, authorities, etc.) to assist in focusing the case for the court: (see Saskatchewan Egg Producers’ Marketing Board v. Ontario, [1993] O.J. No. 434.) Relevant portions of the Compendium should be highlighted or marked. Counsel are urged to consult among themselves in the preparation of a joint Compendium, if possible. The Compendium should contain only essential materials. The use of a loose-leaf format is particularly helpful to the court both for conducting hearings and for writing decisions.
  4. All records and submissions should note on the cover page and the back page the nature of the proceeding for which the material is filed and the scheduled hearing date. When there is more than one affidavit of an individual filed in any proceeding, the affidavits should be numbered sequentially.
  5. Factums should not, in the ordinary course, exceed 25 pages in length.
  6. Unless it is not possible, briefs of authorities and substantial documents should be reproduced using both sides of the page.
  7. Books of Authorities must be highlighted or side-barred to indicate the passages that will be referred to in argument.
  8. The court invites the use of diagrams, corporate organization charts, list of persons involved, point-form chronologies and other synopses of complex or technical evidence.
  9. The prior preparation of draft orders for consideration by the court at the end of a hearing will greatly expedite the issuance of orders. Where relevant model orders have been approved by the Commercial List Users’ Committee, a copy of the draft order blacklined to the model order and indicating all variations sought from the model order must be filed.
  10. For trials, the court encourages the use of sworn witness statements to replace examination in chief, in whole or in part, in appropriate circumstances. All such witness statements must be exchanged with all other parties and counsel well in advance of the hearing and, unless a prior order is made, the witness should be available for cross-examination at the trial. (Also see rule 53.02).

Part XIX: Expert Witnesses

  1. It is expected that counsel will comply with requirements set out in subrule 53.03(1) and (2) so as to provide notice of the intention to call an expert witness, including delivery of a signed report which contains the information mandated by subrule 53.03(2.1) within the expert report. Counsel must bring to the attention of their expert witness the duties of an expert set out in rule 4.1. Best practice should include providing the expert with the language of rule 4.1 and rule 53.03, subrules (1), (2) and (2.1).

Part XX: Reasons for Decision

  1. If an endorsement, order or decision is hand-written or dictated and not transcribed by the court, counsel for the plaintiff or moving party shall assist the court in preparing a typed draft and providing to the court the typed draft for editing by the judge, along with an electronic version of the draft and a copy of the hand-written version or dictation media, highlighting any passages which were difficult to read.

Part XXI: Costs

  1. The court will seek to award and fix costs at the end of the hearing of a matter. Counsel must submit a costs outline [subrule 57.01(6)] and be prepared to deal with costs (including liability, scale and amount) at the conclusion of the hearing of the matter or, if absolutely necessary, by written submissions immediately thereafter.

Part XXII: Users’ Committee

  1. A Commercial List Users’ Committee has been established. It is comprised of members of the judiciary who sit on the Commercial List from time to time, of practitioners who are familiar with the operation of the Commercial List and who are nominated by relevant user organizations in conjunction with the Users’ Committee and of a representative of Courts Administration from the Commercial List Office. The names of the members of the Users’ Committee may be obtained from the Commercial List Office. The Users’ Committee meets regularly to consider improvements to the organization and operation of the Commercial List and to make recommendations to the Regional Senior Justice and the Chief Justice in that regard. The Users’ Committee welcomes suggestions, compliments and complaints from other practitioners who have had cases on the Commercial List. Communications may be sent to the Commercial List Office, which will direct them to the office of the Regional Senior Justice.

Part XXIII: Enquiries

  1. The supervising judge of the Commercial List may be contacted about the scheduling of trials, long matters and urgent matters. In such cases, it is expected that counsel shall give details of the matter, the urgency, if any, expected length and mutually convenient dates. A Request Form and Case Timetable may be used for this purpose.

Part XXIV: Commercial List Forms

  1. Current versions of the Request Forms, Case Timetable and Trial Requirements Memorandum may be obtained from the Commercial List Office.

Part XXV:  Frequently Cited Cases in Commercial Proceedings

  1. An Authorities Book for Commercial List matters containing cases frequently relied on, has been developed and approved for use in matters assigned to the Toronto Commercial List. There will be additions to, and deletions from, the list from time to time. The Authorities Book is available on the Superior Court’s website at: www.ontariocourts.ca/scj/practice/practice-directions/toronto/commercial-list-authorities-book/.
  2. The cases in question appear on this list under various headings or topics which are not in any way intended to provide legal advice.
  3. If you are relying on an authority that is contained in the Authorities Book, it need not be reproduced as part of the materials filed for the matters before the Commercial List in Toronto.

Part XXVI: Protocol Concerning Court-to-Court Communications in Cross Border Cases

  1. The Commercial List has approved the adoption of the Guidelines Applicable to Court-to-Court Communications in Cross Border Cases (“Guidelines”) prepared by the American Law Institute, for matters on the Commercial List. The Guidelines are available at: www.iiiglobal.org/component/jdownloads. The Guidelines have already been applied to international insolvency cases on the Commercial List. It is expected that these Guidelines will facilitate cooperative procedures for insolvency proceedings and other types of commercial disputes involving cross-border proceedings, where court-to-court communications might facilitate in harmonizing proceedings to help ensure consistent results and increase efficiency.
  2. The Guidelines will only be applied in specific cases, following adequate notice to the parties.
  3. Although the Guidelines were prepared for court-to-court communications as between Canada and the United States, the Commercial List endorses their application in court-to-court communications between Canada and other countries, and as between Ontario and the other provinces and territories.
  4. Counsel and/or the parties should ensure that any issues concerning the confidentiality of materials to be transmitted by the Commercial List to another jurisdiction, including the deemed undertaking rule, Rule 30.1 of the Rules of Civil Procedure, be addressed when consideration is given by the court to the transmittal of evidentiary or written materials from the Commercial List to another court. The Guidelines are to apply only in a manner that is consistent with the Rules of Civil Procedure and the practice in this jurisdiction.
  5. The Commercial List confirms, as noted in the Guidelines, that the Guidelines are not meant to be static, but are meant to be adapted an modified to fit the circumstances of individual cases, and to change and evolve as experience is gained from working with them.
  6. A copy of the Guidelines may also be obtained from the Commercial List Office at 393 University Avenue, 10th Floor, Toronto, Ontario M5G 1E6, Telephone 416-327-5043, Fax 416-327-6228.

Dated: April 11, 2014 Heather J. Smith Chief Justice Superior Court of Justice (Ontario) Geoffrey B. Morawetz Regional Senior Judge Superior Court of Justice, Toronto Region