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Pre-trial procedures and offers to settle are considered a process in-themselves.  People are gently nudged to see the cost consequences for failure to accept a realistic offer, thereby encouraging and facilitating settlement.  It is also in Rule 49 of the Rules of Civil Procedure (Rules) stating that they are “liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.”

There has to be a decision on the place where to start the proceeding, even before the originating process can be issued.   The guidelines relating to the place of commencement and hearing of a trial are given in the rules.   Anyway, the originating process must be issued by the court  in which the proceeding is to be commenced, brought, tried, or heard, and the place shall be named in the originating process.  In Ontario, it can be commenced in any place named in the originating process, unless a statute or rule requires it to be commenced in a particular county.  An agreement on the place of hearing between the parties is not binding, but may be taken into account by the court.

When choosing the location, the “interests of justice” test like its precursor “balance of convenience” test, take into account many of the same factors considered before.  Such relevant factors include the location of witnesses, the delay or expedition of the trial, the relative cost, whether the case has a connection with the place proposed, and the judicial caseload in the place proposed. It is an accepted practice that litigation directly affecting a community should be heard in the court that serves the community.

Jury Notice

There are rules allowing any party to an action in the Superior Court of Justice (which does not include here the Small Claims Court) with the right to have the issues of fact tried or the damages assessed, or both, by a jury. But a jury trial cannot be an option in all cases, there is a list of claims with respect to which a jury trial is not available. Actions not permitted for trial by jury include:

  • seeking an injunction or mandatory order;
  • partition or sale of real property;
  • foreclosure or redemption of a mortgage;
  • specific performance of a contract and declaratory relief;
  • other equitable relief;
  • relief against a municipality; and so on.

If the action is not in that excluded list and if the party wishes to have the issues of fact tried or the damages assessed, or both, by a jury, the party has to deliver a jury notice at any time before the close of pleadings.  Thereafter, the opposition, citing some ground or the other, may move before a master or a judge of the Superior Court of Justice for an order striking out the jury notice.

Six persons selected in accordance with the Juries Act comprise the jury, all of them are not required to agree on the verdict or on an answer to a question. If five of the jurors agree, that is enough. If more than one question is submitted, it is not necessary for the same five jurors to agree to every answer. When a juror dies or is discharged, the judge may direct that the trial proceed with five jurors, but in that event, the verdict or the answers to questions must be unanimous.

Generally, due to complexity, moves to get rid of juries are made during a trial.  Judges have been seen to wait to hear some evidence before deciding that the matter is becoming too complex for a jury. But there are often strategic reasons, due to which juries are removed by a legal counsel who feels that the client may get a better result with a lone judge.

Listing for Trial

Any party to the proceeding who is ready for trial can opt for trial after the close of pleadings, provided they are not in default under these rules or an order of the court.  In view of this, the parties have some control over when an action is heard for trial.  An undefended action is set down simply by filing a trial record prepared in accordance with rules.  It is then immediately placed on the trial list.  Normally, a defended action is “set down” before it is placed on the trial list, by serving a trial record on every other party, and immediately filing it with the court with proof of service.  It would be taken up without delay if the written consent of every other party is filed earlier.

In Toronto, it is necessary to refer to a specific rule applicable to all new actions commenced there on or after December 31, 2004. Toronto actions, case managed or otherwise, are set down for trial by filing a trial record. Thereafter, when the action is placed on the trial list, all parties are notified of the date for a pre-trial conference.  The Commercial List Practice Directions on the web is to be consulted for actions on the Commercial List.

Consequences of Listing for Trial

After the action has been placed on the trial list, all parties are supposedly ready to proceed with a pre-trial or the trial. This is a tricky thing because any party who sets an action down for trial will be barred from initiating or continuing any form of motion or discovery except with leave of the court.  In view of this, it is wise to ensure that people are indeed battle-ready.

Contact the lawyers at Levy Zavet PC to discuss the startegy best suited for your case.