THE LAW OF CIVIL PROCEDURE IN ONTARIO

THE LAW OF CIVIL PROCEDURE IN ONTARIO First Edition Paul M. Perell John W. Morden LexisNexis*

TABLE OF CONTENTS Preface About the Authors Table of Cases v vii xlvii Chapter 1: Overview of the Law of Civil Procedure 1 1. Introduction 1 2. The Subject of Civil Procedure 2 3. The Sources of Civil Procedure Law in Ontario 6 (a) Introduction 6 (b) Statutes as a Source of Civil Procedure Law 7 (c) The Rules of Civil Procedure as a Source of Civil Procedure Law 9 (d) The Inherent Jurisdiction of the Court as a Source of Civil Procedure Law 10 (e) Case Law as a Source of Civil Procedure Law 11 (f) The Rules of Professional Conduct as a Source of Civil Procedure Law 14 (g) The Practice of the Court as a Source of Civil Procedure Law... 18 (h) Legal Literature as a Source of Civil Procedure Law 19 4. The Interpretation and Application of Procedural Provisions 20 (a) Interpretation and Application 20 (b) History as an Aid to Interpretation 23 (c) The French Language Version 24 (d) Effect of Non-Compliance 25 5. A Brief History of the Rules 26 6. The Rules of Civil Procedure 33 (a) Introduction 33 (b) The Scope of Application of the Rules 33 (c) Five Linchpin Definitions 34 (d) The Organization of the Rules 36 (e) Citation of Rules Provisions 37 (f) The Analogy Rule 38 7. A Brief History of the Superior Courts in Ontario 38

x Table of Contents Chapter 2: Preliminary Considerations 47 1. Introduction 47 2. Representation and the Lawyer and Client Relationship 48 (a) Representation 48 (b) The Lawyer of Record 49 (c) Individual Self-represented Litigants 50 (i) Lawyer of Record and Getting On or Off the Record 51 (1) Representation by Lawyer 51 (2) Self-representation 51 (3) Representative of a Corporation 52 (4) Procedures to Determine Authority of Lawyer of Record 53 (5) Getting On or Off the Record 54 (6) Motion by Lawyer for Removal as Lawyer of Record... 54 (7) Client Response to Order Removing Lawyer from the Record 56 (8) Rules of Professional Conduct and Lawyer Withdrawal 56 (ii) Claim for Solicitor's Lien or Charging Order 57 (1) Solicitor's Lien 57 (2) Charging Order 58 (iii) Disqualification and Motions to Disqualify the Lawyer of Record 59 (1) Lawyer Conflicts of Interest 59 (2) Tests for Determining whether Lawyer has Disqualifying Conflict of Interest 61 (3) Institutional Measures and Waiver 62 (4) R. v. Neil and the Duty of Loyalty as a Ground for Disqualification 63 (5) Tactical Motions for Lawyer Disqualification 64 (6) Counsel as Witness 65 3. Bars and ex turpi causa non oritur actio 66 (a) The Preliminary Matter of Bars to Litigation 66 (b) The Bar of ex turpi causa non oritur actio 66 (i) Ex Turpi Causa and Tort Claims 67 (1) Limited Role in Tort Claims 67

Table of Contents xi (ii) Ex Turpi Causa and Contract Claims 68 (1) Two Categories of Illegality in Contract Claims 68 (2) Common Law Illegality and Contract Claims 69 (3) Statutory Illegality and Contract Claims 70 (4) Claims Independent of Illegality 71 (5) Severability and Enforcing Illegal Contracts 72 4. Maintenance, Champerty and Contingency Fees 72 (a) Maintenance and Champerty 72 (i) Nature of Maintenance and Champerty 72 (ii) Contemporary Approach to Maintenance 74 (b) Contingency Fees 75 (i) Relationship between Contingency Fees and Champerty... 75 (ii) Contingency Fee Agreements 77 5. Res Judicata and Abuse of Process 78 (a) The Policies and Nature of Res Judicata 78 (i) The Public Policy underlying Res Judicata 78 (ii) The Effect of the Rule of Res Judicata 79 (iii) Res Judicata and Parties and Privies 80 (iv) The Relationship between Res Judicata and Abuse of Process 81 (b) Cause of Action Estoppel 81 (i) Nature of Cause of Action Estoppel 81 (c) Issue Estoppel 83 (i) Nature of Issue Estoppel 83 (ii) Mutuality and Issue Estoppel 85 (iii) Developments in the United States and in England 86 (d) Abuse of Process 88 (i) Nature and Role of Abuse of Process 88 (ii) Abuse of Process and the Mutuality Requirement of Issue Estoppel 89 (e) The Collateral Attack Principle 90 (i) Nature and Role of Collateral Attack Principle 90 (ii) Collateral Attacks on the Decisions of Administrative Tribunals 91 (iii) Collateral Attacks as an Abuse of Process 91 (f) The Significance of Criminal Convictions in Civil Proceedings 92 (i) Common Issues in Civil and Criminal Proceedings 92

xii Table of Contents 6. Vexatious Claims and Litigants 92 (a) (b) Jurisdiction to Deal with Vexatious Claims and Vexatious Litigants 92 Vexatious Litigants under Section 140 of the Courts of Justice Act 93 (c) Examples of Vexatious Proceedings 94 7. Notice and Limitation Periods 96 (a) Nature of Statutes of Limitation 96 (b) The Purpose of Limitation Periods 98 (c) Notice Requirements 98 (d) Proceedings Against the Crown Act 99 (e) Municipal Act, 2001 100 (f) The Libel and Slander Act 100 (g) The Operation of Limitation Periods and Ontario's Limitations Act, 2002 101 (i) The Barring of Claims under the Limitations Act, 2002... 101 (ii) Barring Claims under Other Limitation Statutes 101 (iii) Discoverability and the Basic Limitation Period 102 (iv) Demand Obligations 103 (v) Ultimate Limitation Period 104 (vi) Limitation Period for Claims Against Minor or Person under Disability 104 (vii) Assault and Sexual Assault Claims 105 (viii) Environmental Claims 106 (ix) Special Provisions of the Limitations Act, 2002 106 (h) Limitation Periods and Amendments to Pleadings 107 (i) (i) The Problem of Amending Pleadings after the Passage of a Limitation Period 107 (ii) Misnomer Exception 109 Estoppel and Other Counters to a Pleading of a Limitation Period Defence 110 8. Service of Documents 111 (a) Service of Documents as a Preliminary Matter 111 (b) "Delivery" of Court Documents 112 (c) The General Scheme for Service under the Rules 113 (d) Originating Process, Personal Service and Alternatives to Personal Service 114 (e) Documents Other than Originating Process 115

Table of Contents xiii (f) Service on Lawyer of Record 116 (g) Substituted Service and Dispensing with Service 117 (h) Proof of Service, Deemed Service, and Validating Service 118 (i) Disputing Service 119 (j) Service of Documents Outside Ontario under Rule 17 119 (i) Special Service Rules Where Parties Outside Ontario 119 (ii) Service Outside Ontario without Leave 120 (iii) Claims for which Leave Is Required 121 (iv) Manner of Service Outside Ontario 122 9. Jurisdiction Simpliciter and Forum Conveniens 122 (a) Introduction 122 (i) Jurisdiction as a Crucial Preliminary Matter 122 (ii) Motion to Challenge the Court's Jurisdiction 124 (iii) Jurisdiction Simpliciter 125 (iv) Forum Non Conveniens 130 (v) Choice of Forum Clauses in Contracts 131 (b) Disposition of a Motion Challenging the Court's Jurisdiction... 132 (i) Dismissal of Motion or Dismissal or Stay of Action 132 10. The Anti-Suit Injunction 133 (a) The Role and Nature of the Anti-Suit Injunction 133 (b) Criteria for an Anti-Suit Injunction 134 11. Monetary Jurisdiction 135 (a) Role of Monetary Jurisdiction 135 (b) Monetary Jurisdiction of the Small Claims Court 136 (c) Monetary Jurisdiction of the Simplified Procedure (Rule 76)... 136 12. Venue and Place of Commencement 137 (a) The Meaning of Venue 137 (b) Selecting and Changing the Place of Commencement 138 13. Jury and Non-jury Trials 140 (a) Availability of Jury Trials 140 (b) Motion to Strike Jury Notice 141 (c) Test for Striking Out Jury Notice 142 Chapter 3: Preservation of Rights in Pending Litigation 145 1. Introduction 145 (a) Procedures to Preserve Rights 145 (b) Organization of Chapter 3 145

xiv Table of Contents 2. Interlocutory Injunctions 146 (a) Introduction: The Various Kinds of Interlocutory Injunctions... 146 (b) Injunctions and the Court's Equitable Jurisdiction 148 (c) The Effect of an Interlocutory Injunction on the Proceedings... 149 (d) Some Procedural Aspects of an Interlocutory Injunction 150 (i) Interlocutory Injunctions on Motions without Notice 150 (ii) Test for an Interim Interlocutory Injunction 152 (e) The Test for an Interlocutory Injunction 152 (i) Power to Grant Interlocutory Injunction 152 (ii) The RJR-MacDonald Test for an Interlocutory Injunction... 153 (1) The Strength of the Plaintiffs Case 154 (2) Irreparable Harm 155 (A) Irreparable harm and proceedings brought by the Attorney General 157 (3) Balance of Convenience 157 (f) The Undertaking as to Damages 158 (i) The Role and Nature of the Undertaking as to Damages... 158 (ii) Enforcement of the Undertaking as to Damages 159 (g) Defences to a Motion for an Interlocutory Injunction 160 (i) Equitable Defences 160 (ii) "Clean Hands" as a Defence to a Motion for an Injunction... 161 (iii) Laches 161 (iv) Injunction Orders and the Crown 162 3. The Injunction Order and Enforcement 163 (a) Contempt and the Enforcement of Injunction 163 4. Injunctions in Labour Disputes 164 (a) Special Provisions for Injunctions in Labour Disputes 164 (b) The Nature of a Labour Dispute 165 (c) The Test for an Injunction in a Labour Dispute 165 (d) Procedure for an Injunction in a Labour Dispute 166 (e) Interim Injunction without Notice 167 5. Mareva Injunctions, Anton Piller Orders, and Norwich Orders 167 (a) Special Types of Injunctive Orders 167 (i) The Mareva Injunction 169 (1) Nature of the Mareva Injunction 169 (2) Test for a Mareva Injunction 171

Table of Contents xv (3) Procedure for Obtaining a Mareva Injunction 171 (4) Terms of the Mareva Injunction 172 (ii) The Anton Piller Order 173 (1) Nature of the Anton Piller Order 173 (2) Procedure for Obtaining an Anton Piller Order 174 (3) The Test for an Anton Piller Order 175 (4) Terms of an Anton Piller Order 175 (5) Implementation of an Anton Piller Order 176 (iii) The Norwich Order 177 (1) Nature of the Norwich Order 177 (2) The Test for a Norwich Order 178 (3) The Norwich Order and the Deemed Undertaking... 179 (4) Combining a Norwich Order with Injunctions 179 6. Interim Recovery of Personal Property under section 104 of the Courts of Justice Act and Rule 44 180 (a) Replevin and the Motion for the Recovery of Personal Property... 180 (b) The Substantial Grounds Test 181 (c) Disposition of Motion 182 (d) Security 183 (e) Damages 183 (f) Motion to Vary 183 (g) Enforcement of the Order 184 7. Interim Preservation of Property under Rule 45 184 (a) Preservation Orders under Rule 45 184 (b) Test for an Order for Interim Preservation of Property 184 (c) Rule 45.01 Order as an Alternative to an Anton Piller Order 185 (d) Payment of Specific Fund into Court under Rule 45.02 186 (e) Nature of Specific Fund under Rule 45.02 186 (f) Recovery of Personal Property Held as Security 187 8. The Certificate of Pending Litigation 187 (a) Historical Background 187 (b) The Effect of a Certificate of Pending Litigation 189 (c) Obtaining a Certificate of Pending Litigation 190 (i) Availability of Certificate of Pending Litigation 190 (ii) Necessity of Plaintiff Having an Interest in Land 190 (d) Discharging a Certificate of Pending Litigation 192

xvi Table of Contents (i) Motion for Order Discharging Certificate 192 (ii) Grounds for Discharging a Certificate of Pending Litigation 193 (iii) Effect of Discharging a Certification of Pending Litigation... 194 (e) Liability for Registering a Certificate of Pending Litigation 195 9. Interpleader Procedure 195 (a) The Purpose of the Interpleader Procedure 195 (b) Availability of Interpleader Procedure 196 (c) Disposition of Interpleader 197 10. Sealing Orders and Pseudonyms 198 (a) Privacy, Sealing Orders and Pseudonyms 198 (b) Open Courts and Exceptions to the Open Court Principle 199 (c) Grounds for a Sealing Order 200 (d) Pseudonyms 201 11. The Appointment of a Receiver or Receiver-Manager 202 (a) The Role of a Receiver or Receiver-Manager 202 (b) The Private Receiver 202 (c) The Court-Appointed Receiver 203 (d) Test for the Appointment of a Receiver by the Court 204 (e) Motion for the Appointment of a Receiver 206 (f) Terms of the Order Appointing a Receiver 206 (g) Proceedings Against a Receiver 207 Chapter 4: Parties, Joinder of Parties, and Joinder and Separation of Claims and Defences 209 1. Introduction 209 (a) The Scope of Chapter 4 209 (b) Organization of Chapter 4 210 2. The Crown and Foreign States and Sovereigns 211 (a) Proceedings by and against Sovereign Nations 211 (b) Proceedings against the Crown at Common Law 212 (c) Removal of Crown Immunity 213 (d) Proceedings against Foreign States 214 (i) Exception: No Immunity for Commercial Activity 215 (ii) Tort Exemption to Sovereign Immunity 216 (iii) Other Exceptions to Immunity and Waiver of Immunity... 217

Table of Contents xvii 3. Indian Bands 218 (a) Indian Bands as Statutory Bodies 218 4. Natural Persons, Individuals, Executors and Administrators 219 (a) Natural Persons or Individuals 219 (i) Fetus 220 (ii) Claims against the Dead and Proceedings against Executors, Administrators, Trustees, etc 221 (iii) The Role of Executors and Administrators 222 (iv) Actions Commenced against a Dead Person 223 (v) Declaration of Death 224 5. Natural Persons under Disability and Litigation Guardians 225 (a) Special Rules for Natural Persons under Disability 225 (b) Absentees Jurisdiction under the Absentees Act 226 (c) Mentally Incapable within the Meaning of the Substitute Decisions Act, 1992 227 (i) Litigation Guardians and Incapacity under the Substitute Decisions Act, 1992 228 (d) Litigation Guardians 229 (e) (i) Where a Litigation Guardian Is Required 229 (ii) Litigation Guardians for Plaintiffs and Applicants 229 (iii) Litigation Guardians for Defendants and Respondents 230 (iv) Where No Litigation Guardian Is Available for a Party under Disability 232 (v) Role of the Litigation Guardian 232 (vi) Removal or Substitution of Litigation Guardian 233 Special Rules for Parties under a Disability and Settlement Approvals 234 (i) Special Rules for Parties under a Disability 234 (ii) Approval of Settlement Involving a Party under Disability... 236 6. Sole Proprietorships 237 (a) Proceedings by and against Sole Proprietorships 237 7. Partnerships 238 (a) Proceedings against Partners and Partnerships 238 (i) Proceedings against Partnership Using the Firm Name 240 (ii) Enforcement Against Partner of Order against Partnership... 240 (iii) Proceedings between Partners and Partnerships 241 (iv) Disclosure of Partners 242

xviii Table of Contents (v) Proceedings with Limited Partnership as Party 242 8. Corporations 243 (a) The Legal Nature of Corporations 243 (b) Corporation and Its Shareholders as Separate Legal Entities 243 (c) "Piercing the Corporate Veil" 244 (i) The Rule in 5a/dv. Butt 245 (d) Proceedings Involving Dissolved Corporations 246 9. Trustees in Bankruptcy 247 (a) Proceedings Involving Trustee in Bankruptcy 247 (b) Claims against a Bankrupt 248 (i) Assignment of Claims 249 (ii) Personal Claims of the Bankrupt 250 10. Statutory Entities 250 (a) Legal Status and Various Types of Statutory Entities 250 11. Unincorporated Associations 251 (a) The Legal Status of Associations 251 (b) Proceedings by and against Unincorporated Associations 251 12. Trade Unions 252 (a) Proceedings by and against Trade Union 252 13. Representative Plaintiffs, Defendants and Class Proceedings 254 (a) Representative Parties and Class Actions 254 (b) Rules 12.07, 12.08 and 10 256 (i) Rules Providing for Representation Orders 256 (1) Rule 12.07 256 (2) Rule 12.08 257 (3) Rule 10 (Representation Order) 257 (c) Class Proceedings Act, 1992 259 (i) Purposes of the Class Proceedings Act, 1992 259 (ii) Nature of a Class Action 260 (iii) Certification as a Class Proceeding 261 (1) Criteria for Certification 261 (A) Disclose a Cause of Action 261 (B) Identifiable Class 262 (C) Common Issues 263 (D) Preferable Procedure 264 (E) Representative Plaintiff 264

Table of Contents xix (iv) Procedure in Class Proceedings 265 14. Transmission of Interest 266 (a) Litigation and the Assignment of Rights and Liabilities 266 (b) The Transmission of Interest and the Order to Continue 266 (c) Consequences of Transmission of Interest 267 15. Necessary, Proper and Improper Parties as a Matter of the Substantive Law 267 (a) Necessary, Proper and Improper Parties to Proceedings 267 (b) Principles for the Determination of Who Are Necessary and Proper Parties 269 (i) Parties and the Cause of Action 269 (ii) The Plaintiff is Dominus Litis 270 (iii) The Effect of a Judgment 271 (iv) Res Judicata and Abuse of Process 273 (v) Avoidance of Multiplicity of Proceedings 273 (vi) Anticipating the Response of the Defendant or Applicant 274 16. Parties: Contract Claims 275 (a) Multiple Parties and Contract Claims 275 (b) Privity of Contract 275 (c) Contractual Rights and Liabilities: Joint, Several, and Joint and Several 276 (d) Contract Claims and the Law of Agency 278 (e) Disclosed Principal Rule 279 (f) Undisclosed Principal Rule 279 (g) Sealed Contract Rule 281 17. Parties: Real Property Claims 282 (a) Multiple Parties and Real Property Claims 282 (b) Four General Principles about Parties to Actions Involving Real Property 283 18. Parties: Tort Claims 284 (a) Joint, Several, Concurrent and Non-concurrent Tortfeasors 284 (i) Concurrent Tortfeasors 286 (1) Contribution and Indemnity between Tortfeasors 286 (2) The Judgment Bar Rule and the Release Bar Rule... 289 (ii) Non-concurrent Tortfeasors 290 19. Parties: Assignment of a Chose in Action 291 (a) Parties and Assignable Claims 291

xx Table of Contents (b) Assignments of Causes of Action under the Bankruptcy and Insolvency Act 293 (c) Causes of Action that Are Not Assignable 293 20. Parties: Claims involving Estates or Trusts 294 (a) Estate as a Party to Proceedings 294 21. Standing, Intervention, Mootness and Justiciability 296 (a) Right to Participate in Proceedings 296 (b) Standing 297 (i) The Nature of Standing 297 (ii) Private and Public Rights and Where Problems of Standing Arise 297 (iii) The Test for Standing 298 (c) Intervention 298 (i) Intervenors: Parties or as Friend of the Court 298 (ii) Test for Intervenor Status 300 (iii) Statutory Right to Intervene 301 (d) Mootness 302 (i) Nature of Mootness 302 (ii) Exceptions to the Principle of Mootness 303 (e) Justiciability 304 (i) The Nature of Justiciability 304 (ii) Examples of Non-justiciable Issues 305 22. Claims and Defences 305 (a) Parties and the Joinder of Claims and Defences 305 (b) Cause of Action 306 (i) Constituent Elements of a Cause of Action 307 (ii) Multiple Causes of Action 307 (c) Defences 308 (i) General Defences 308 (ii) Special Defences 309 (d) Counterclaim and Set-Off. 309 (i) Nature of Counterclaim and Set-Off 309 (ii) Set-off 310 23. Joinder of Parties and Claims and the Consolidation and Separation of Proceedings 312 (a) Consolidation and Separation of Proceedings 312 (b) Avoidance of the Multiplicity of Proceedings 312

Table of Contents xxi (b) The Joinder of Multiple Claims and Defences 313 (c) The Joinder of Multiple Parties 314 (d) Consolidation of Proceedings 315 (i) Criteria for Consolidation 316 (e) Separate Hearings of Proceedings 317 Chapter 5: Types of Action, Pleadings and Applications 321 1. Introduction 321 2. Various Proceedings by Action 322 (a) Introduction 322 (i) Proceedings by Action 322 (b) The Main Action 323 (i) Commencing an Action 323 (ii) Pleadings in an Action 324 (iii) Pleadings after a Reply 325 (iv) Time for Service 326 (v) Extending the Time for Service 326 (vi) Close of Pleadings 327 (c) Counterclaims 328 (i) Nature of Counterclaim 328 (ii) Pleadings in a Counterclaim 329 (iii) Time for Service 329 (iv) Trial of Counterclaim 330 (d) Crossclaims 331 (i) Nature of Crossclaim 331 (ii) Pleadings in a Crossclaim 332 (iii) Time for Service 333 (iv) Trial of Crossclaim 333 (e) Third and Subsequent Party Claims 333 (i) Nature of Third and Subsequent Party Claims 333 (ii) Availability of Third Party Claims 334 (iii) Preclusion of Third Party Claims Attributable to the Conduct of the Plaintiff 336 (iv) Pleadings in a Third Party Claim 336 (v) Time for Issuance and Service 337 (vi) Fourth and Subsequent Party Claims 338 (vii) Trial of Third Party Claim 338

xxii Table of Contents 3. The Rules Governing Pleadings in an Action 338 (a) Forms and Formal Requirements 338 (b) The Function of Pleadings 339 (i) Multi-functionality of Pleadings 339 (ii) Pleadings Are Privileged 343 (c) Material Facts The Most Important Pleadings Rule 343 (i) Pleadings Rules 343 (ii) The Nature of Material Facts 344 (iii) Material Facts, Not Evidence, to be Pleaded 345 (iv) Pleading Law 345 (v) Rules to Simplify the Task of Pleading 346 (d) Particulars 347 (i) The Nature of Particulars 347 (ii) Test for Ordering Particulars 348 (e) Rules Applicable to Claims 349 (i) Rules for Claims 349 (f) Rules Applicable to Defences 350 (i) Defendant's Version of the Material Facts to be Pleaded.. 350 (ii) Special Defences 351 (iii) Pleadings by Co-defendants 352 (g) Rules Applicable to Replies 352 (i) When a Reply Pleading Required 352 (ii) Rules for Reply Pleadings 353 (h) Defective Pleadings 354 (i) Striking Defective Pleadings 354 (ii) Scandalous Pleadings 354 (iii) "Fishing Expedition" Pleadings 356 (iv) Alternative Pleadings and Departures 356 (v) Substantively Inadequate Pleadings 357 (vi) Style of Pleadings 357 (vii) Motions to Attack Pleadings 358 4. Amendment of Pleadings 358 (a) Purposes of Amending Pleadings 358 (b) Where Leave to Amend Not Required 359 (c) Motion to for Leave to Amend a Pleading 359 (d) Amendment to Join Party 361

Table of Contents xxiii (e) Formalities of Amendment 362 (f) Response to Amended Pleading 362 5. Mortgage Actions 363 (a) Mortgages and Mortgage Actions under the Rules 363 (b) Historical Background to Mortgage Actions 363 (c) The Development of the Action for Foreclosure 364 (d) Foreclosure or Judicial Sale 364 (e) Mortgage Actions and Power of Sale Proceedings 365 (f) Foreclosure Actions 366 (i) Claims and Parties in a Foreclosure Action 366 (ii) Defendant's Options in a Foreclosure Action 367 (iii) Judgments or Redemption in a Foreclosure Action 367 (iv) Sale instead of Foreclosure 368 (g) Sale Actions 369 (i) Claims and Parties in a Sale Action 369 (ii) Defendant's Options in a Sale Action 369 (iii) Redemption or Judgments in a Sale Action 369 6. Estates Non-Contentious and Contentious Proceedings 370 (a) Special Rules for the Disputes Involving Estates 370 (b) Probate Jurisdiction 371 (c) The Estates List 372 (d) Non-contentious Proceedings 372 (e) Contentious Proceedings 372 (f) Proceedings for Administration or Execution of a Trust 3 73 7. Proceedings by Application 374 (a) The Application Procedure: Jurisdiction 374 (b) Converting Application to Action 376 (c) Evidence on Applications 377 (i) Affidavit Evidence 377 (ii) Examination of Witness before Hearing 378 (iii) Motion to Quash Summons 379 (iv) Request to Admit 380 (v) Closure on the Delivery of Evidence for an Application... 380 (d) Procedure on an Application 381 (i) Rules and Practice Directions for Applications 381 (ii) Originating Process 382

xxiv Table of Contents (iii) Service of Originating Process 383 (iv) Notice of Appearance 383 (v) Counter-application 383 (vi) Motion to Strike Application 384 (vii) Records, Factums and Transcripts 384 (viii) Abandoned Applications 384 (ix) Confirmation of Application 385 (x) Adjournment 385 (xi) Hearing of Application 386 (e) The Court's Powers in Disposing of an Application 386 (i) Jurisdiction to Dispose of Application 386 (ii) Setting Aside or Varying an Order Obtained on an Application 387 8. Partition Act Proceedings 387 (a) Availability of Proceedings for Partition and Sale 387 (b) The Right to Partition and Sale under the Partition Act 388 (c) The Court's Jurisdiction to Order a Sale 389 9. Proceedings for Judicial Review 390 (a) Availability of Proceedings for Judicial Review 390 (b) Procedure for Proceedings for Judicial Review 390 (c) Dismissal for Delay 391 (d) Notice to Attorney General 392 10. Bilingual Proceedings 392 Chapter 6: Dispositions without Trial 395 1. Procedures for Dispositions Without Trial 395 2. Dismissal under Rule 14.10 Where Defendant Pays Claim 397 3. Discontinuance and Withdrawal under Rule 23 397 (a) Discontinuance 397 (b) Effect of Discontinuance 398 (c) Disadvantages of a Discontinuance for the Defendant 398 (d) Effect of Discontinuance on Other Proceedings 399 (e) Procedure for Discontinuance 399 (f) Costs of Discontinuance 400 (g) Jurisdiction to Set Aside Discontinuance 401 (h) Withdrawal 402 (i) Effect of and Procedure for a Withdrawal 402

Table of Contents xxv (ii) Rarity of Withdrawals 402 4. Default Proceedings under Rule 19 against the Defendant 402 (a) Default Procedures against a Defendant 402 (b) Grounds for Noting a Defendant in Default 403 (c) Avoidance of Sharp Practice 404 (d) Consequences of Being Noted in Default 405 (e) Default Judgment Signed by the Registrar 406 (f) Liquidated Demand in Money 406 (g) Registrar May Decline to Sign Default Judgment 408 (h) Motion for Judgment under Rule 19.05 408 (i) Undefended Trial 409 5. Setting Aside Noting in Default and Default Judgments 410 (a) Setting Aside Consequences of Default 410 (b) Noting in Default and Procedural Irregularities 411 (c) Setting Aside Noting in Default 412 (d) Setting Aside Default Judgment 412 6. Dismissal of Action for Default under Particular Rules 414 (a) Grounds for Dismissal of Actions 414 7. Dismissal of Action for Delay under Rule 24 416 (a) Jurisdiction to Dismiss the Plaintiffs Action for Delay 416 (b) Effect of Dismissal for Delay on Subsequent Action 417 (c) Effect of Dismissal for Delay on Counterclaims, Crossclaims and Third Party Claims 417 (d) The Practical Effect of a Motion for Dismissal for Delay 418 (e) The Court's Discretion to Dismiss for Delay 420 (f) Prejudice and the Presumption of Prejudice from Delay 421 (g) Responsibility for the Delay 421 (h) Second Motion to Dismiss for Delay 422 8. Status Notice and Status Hearing under Rule 48.14 422 (a) Status Notice and the Dismissal for Delay under Rule 48.14 422 (b) Dismissal by Registrar for Failure to Respond to Status Notice 423 (c) Status Hearing 424 (i) Disposition at Status Hearing 425 (ii) Dismissal by Registrar for Failure to Respond to Order Made at Status Hearing 426 9. Dismissal of Action as Abandoned under Rule 48.15 426 (a) Registrar's Administrative Dismissal of Action 426

xxvi Table of Contents 10. Rule 37.14(1 )(c) and Setting Aside a Registrar's Order Dismissing an Action 427 (a) Jurisdiction under Rule 37.14(l)(c) to Set Aside Registrar's Dismissal of Action 427 11. Mandatory Mediation under Rule 24.1 or Rule 75.1 429 (a) Availability of Mandatory Mediation 429 (b) Procedure for Mandatory Mediation under Rule 24.1 430 (c) Exemption from Mandatory Mediation 432 (d) Mediator's Fees 432 (e) Non-Compliance 432 (f) Enforcement of Settlement 433 12. Enforcing Settlements 433 (a) Jurisdiction to Enforce Settlements 433 (b) Lawyer's Authority to Bind the Client to a Settlement 435 13. Stay of Proceedings under Section 106 of the Courts of Justice Act... 436 (a) The Court's Jurisdiction to Stay Proceedings 436 (b) Test for a Stay of Proceedings 437 (c) Examples of the Circumstances of the Court's Jurisdiction to Stay Proceedings 438 (d) Stay Because of Arbitration Agreement 439 (e) Stay Because of Pending Criminal Proceedings 440 14. Rule 21 and the Determination of an Issue before Trial 441 (a) Types of Motion under Rule 21 441 (b) Determination of an Issue under Rule 21.01(l)(a) 441 (i) Approach to and Test for a Motion under Rule 21.01(l)(a)...442 (c) Action Discloses No Reasonable Cause of Action or Defence.. 443 (d) (i) Test for a Motion under Rule 21.01 (l)(b) 444 (ii) Leave to Amend to Plead a Viable Defence 445 Determination under Rule 21.01 (3) that Plaintiffs Action Should Not Proceed 445 (i) Grounds for a Motion under Rule 21.01(3) 446 (ii) No Jurisdiction over the Subject Matter of the Action 446 (iii) Absence of Legal Capacity 447 (iv) Another Proceeding Pending in Ontario or Another Jurisdiction 447 (v) Actions that Are an Abuse of Process 448 (e) Delay in Bringing a Motion under Rule 21.01 448

Table of Contents xxvii 15. Summary Judgment under Rule 20 448 (a) Purpose and History of the Summary Judgment Rule 448 (b) Procedure for a Summary Judgment 450 (c) Evidence on a Motion for Summary Judgment 451 (d) The Test for a Summary Judgment 452 (e) Dispositions of a Motion for Summary Judgment 455 (f) Stay of Execution Where Tenable Counterclaim 457 (g) Costs on Motion for Summary Judgment 458 (h) Jurisdiction of Master to Grant Summary Judgment 458 16. Motion under Rule 51.06 for Judgment based on an Admission 458 (a) Judgment Based on Admission 458 17. Judgment under Rule 37.13(2)(a) as the Disposition of a Motion 460 (a) Conversion of Motion into Motion for Judgment 460 18. Special Case under Rule 22 461 (a) Availability of Special Case Procedure 461 (b) Procedure for Special Case 462 (c) Special Case in the Court of Appeal 463 (d) Form of Special Case 464 Chapter 7: Discovery of Documents, Examinations for Discovery and Other Examinations 465 1. Introduction 465 2. History of the Discovery Procedure in Ontario 466 (a) The History of Discovery 466 (b) The Challenges of Modern Technology to the Discovery Process 467 (c) Recent Reforms to the Discovery Procedure 468 3. The Benefits of Discovery of Documents and Examinations for Discovery 469 (a) Benefits of Discovery 469 (b) Preparing Witnesses for Examinations for Discovery 471 4. Discovery of Documents 471 (a) Disclosure and the Affidavit of Documents 471 (i) Disclosure and the Production of Documents 471 (ii) The Completion of Pleadings and the Exchange of the Affidavit of Documents 471 (iii) The Form and Contents of the Affidavit of Documents 472

xxviii Table of Contents (b) The Disclosure of Privileged Documents 473 (c) The Standard of Disclosure 474 (d) Nature of Documents to Be Disclosed 475 (i) Crown's Brief in Criminal Proceedings 476 (ii) Ancillary Rules that Enhance the Disclosure of Documents 476 (iii) Ongoing Disclosure Obligations 477 (e) Production of Documents 477 (i) Production of Documents for Examination 477 (ii) Procedure for Inspection of Documents 478 (iii) Practice with respect to the Production of Documents 479 (iv) Documents to be Brought to Examination for Discovery and to Trial 479 5. Proportionality in Discovery 480 (a) The Proportionality Principle 480 6. The Discovery Plan 480 (a) The Requirement of a Discovery Plan 480 (b) Contents of Discovery Plan 481 (c) Enforcement of Discovery Plan 482 7. The Sedona Canada Principles and the Ontario E-Discovery Guidelines 482 8. Disclosure and Production from Non-parties 484 (a) Limited Production from Non-Parties 484 (b) The Test for Disclosure and Production from a Non-party 485 (c) Procedure 486 9. Forms of Examination for Discovery 486 (a) Availability of Oral and Written Examinations for Discovery... 486 10. Oral Examination for Discovery 487 (a) The Purposes and Scope of Oral Examinations for Discovery... 487 (i) The Purposes of Oral Examination for Discovery 487 (ii) The Scope of Examination for Discovery 487 (iii) Ancillary Rules that Enhance the Scope of the Examination for Discovery 488 (b) The Discovery of Expert's Notes and Reports 489 (c) The Obligation of Continuing Discovery 490 (d) Who May Examine and Be Examined 491 (i) Examination of Party Adverse in Interest 491

Table of Contents xxix (ii) Examination of Party under Disability 492 (iii) Examination of Partners and Sole Proprietors 492 (iv) Examinations where a Party Is a Corporation 493 (v) Examinations of Assignees, a Bankrupt, Nominal Party... 495 (e) Time Limits on Examinations for Discovery 495 (i) Time Limits on Oral Examinations for Discovery 495 (f) Attendance at the Examination for Discovery 496 (i) Attendance of Examining Party 496 11. Examination of Non-Parties under Rule 31.10 497 (a) When an Examination for Discovery of a Non-Party Will Be Permitted 497 (i) Test for Examination of Non-party 498 (b) Procedure for Oral Examinations under Rule 34 499 (i) Procedure for Various Types of Examination: Introduction... 499 (ii) Arrangements for Examinations 499 (iii) Place of Examination 500 (1) Place of Examination Ontario Residents 500 (2) Place of Examination Where Person to Be Examined not an Ontario Resident 500 (3) Place of Examination of Non-Resident Examination in Ontario 501 (4) Place of Examination Examination Outside Ontario 501 (iv) Conduct of the Examination 502 (v) Use of Interpreter 503 12. Letters of Request (Letters Rogatory) 503 (a) (b) Requesting the Assistance of a Foreign Court for Ontario Proceedings 503 Requests by Foreign Court for the Assistance of the Ontario Court 504 13. Examination for Discovery by Written Questions under Rule 35 506 (a) Availability of Written Examinations for Discovery 506 (b) Procedure for Written Questions 506 (c) Where the Written Answers Are Unsatisfactory 506 (d) Abusive or Improper Written Questions 507 14. Divided Disclosure and Discovery 507 (a) Divided Discovery 507

xxx Table of Contents 15. Examination under Rule 36 of Witness Unavailable to Testify at Trial... 508 (a) (b) Availability of Examination before Trial of Witness Unavailable to Testify at Trial 508 Conduct of Examination of Witness Unavailable to Testify at Trial 509 (c) Use of Evidence Taken under Rule 36 509 16. Request to Admit Fact or Document under Rule 51 510 (a) The Request to Admit 510 (b) Response to Request 511 (c) Disputes about the Request to Admit 511 (d) Withdrawal of Admission 512 (e) Use of the Request to Admit 512 17. Medical Examination of Party under Rule 33 513 (a) Availability of Medical Examination of Party 513 (b) Test for Order under Rule 33 and Section 105 of the Courts of Justice Act 514 (c) Procedure for Medical Examination 515 (d) Service of Medical Report 516 18. Inspection of Property under Rule 32 516 (a) The Inspection of Property under Rule 32 516 (b) Procedural Requirements for an Order under Rule 32 517 19. Sanctions for Non-compliance with Disclosure and Production Obligations 518 (a) Enforcement of Discovery Obligations: Introduction 518 (i) Inadequate Affidavit of Documents 518 (ii) Failure to Disclose or Produce Document 519 (iii) Improper Conduct at Examination 519 (iv) Failure to Answer at Examination for Discovery 520 20. Deemed Undertaking 522 (a) The Purposes and Role of the Implied and the Deemed Undertaking 522 (b) Scope of the Deemed Undertaking 522 (c) Exceptions to the Deemed Undertaking 523 (d) Order that the Deemed Undertaking Does Not Apply 524 (e) Sanctions for Breach of the Deemed Undertaking 524 21. Privilege Privileged Communications 525 (a) The Nature of Privilege 525

Table of Contents xxxi (b) Availability and Rationales for Privileged Communications 527 (c) Solicitor-Client Privilege 528 (i) The Nature of Solicitor-Client Privilege 528 (ii) The Elements of Solicitor-Client Privilege 529 (iii) Availability of the Solicitor-Client Privilege 529 (iv) Joint Retainer 531 (v) In-house Counsel and Corporate Clients 531 (d) Litigation Privilege 532 (i) Elements of Litigation Privilege 532 (ii) Scope of Litigation Privilege 533 (iii) Comparison Between Solicitor-Client and Litigation Privilege 534 (iv) Common Interest Privilege 535 (e) Privilege for Settlement Negotiations 536 (i) Without-prejudice Communications for Settlement Purposes 536 (ii) Exceptions and Termination of the Privilege 537 (f) Crown Privilege 538 (i) Confidentiality and Privacy in the Public Interest 538 (g) Case-by-Case Privilege 540 (i) Wigmore Criteria for Privilege and Case-by-Case Claims of Privilege 540 (h) Exceptions to Privilege 542 (i) The Crime or Fraud Exception to Privilege 542 (ii) Public Safety Exception to Privilege 544 (iii) Communications with Estate Executor 545 (i) Waiver and Other Losses of Privilege 545 (i) Loss of Privilege 545 (ii) Implied Waiver 546 (iii) Waiver by Disclosure of Privileged Communications 548 Chapter 8: Timetables, Motions, Offer to Settle, Pre-trial Conference, Simplified Procedure, Case Management and Listing for Trial 551 1. Introduction 551 2. Timetables 552 (a) The Establishment of a Timetable 552 (b) Content of Timetable 552

xxxii Table of Contents (c) Amendment of Timetable 553 (d) Non-Compliance with Timetable 553 3. Motions 553 (a) The Nature of a Motion 553 (b) Jurisdiction of Judge, Master or Registrar to Hear Motion 554 (c) Designated Judge under Rule 37.15: Special Motion Procedure 556 (d) Procedure on Motion 557 (i) Rules for Making a Motion 557 (ii) Practice Directions and Local Customs 558 (iii) Effect of Service Notice of Motion 559 (iv) Affidavit Evidence 559 (v) Discovery Evidence 560 (vi) Closure on the Delivery of Evidence for a Motion 561 (vii) Examinations and Cross-examinations 561 (viii) Motion to Quash a Summons for Examination 562 (ix) Confirmation of Motion 563 (x) Adjournment 564 (xi) Abandoned Motions 564 (xii) The Hearing of a Motion 565 (xiii) Motions in Writing 565 (xiv) Setting Aside or Varying an Order Obtained on an Motion... 566 (e) The Court's Powers in Disposing of a Motion 566 (i) Power to Dispose of a Motion 566 (f) Motions without Notice 567 (i) Circumstances Where a Motion May Be Made without Notice 567 (ii) Disclosure on Motion without Notice 568 (iii) Notice of an Order made on a Motion without Notice to Be Served 568 (iv) Setting Aside or Varying an Order Obtained on a Motion without Notice 568 (g) Motions and the Further Step Rule 569 (i) Non-compliance with the Rules and the Prohibition on Making a Motion 569 4. Offer to Settle 570 (a) Offer to Settle: Procedure 570 (i) Application of the Offer to Settle Rule 570

Table of Contents xxxiii (ii) Nature of an Offer to Settle under Rule 49 571 (iii) Form and Content of the Offer to Settle 572 (iv) Offer to Contribute 572 (v) Contract Formation under the Offer to Settle Rule 573 (b) Costs Consequences of Offers to Settle 574 (i) The Role of Costs Consequences under the Offer to Settle Rule 574 (ii) Costs Consequences of a Plaintiffs Offer 575 (iii) Costs Consequences of a Defendant's Offer 575 (iv) Costs Consequences and Multiple Defendants 5 76 (v) The Asymmetrical Nature of Costs Consequences 577 (vi) Onus of Proof of the Favourability of the Offer 578 5. Pre-trial Conference 578 (a) Purpose of Pre-trial Conference 578 (b) Procedure for Pre-trial Conference 580 (c) Confidential Communications 581 (d) Parties May Consent to Pre-trial Conference Judge Presiding at Trial 581 (e) Orders with respect to the Conduct of the Proceedings 581 (f) Fixing a Trial Date and the Pre-trial Conference Report 582 6. The Simplified Procedure 582 (a) Policy Underlying the Simplified Procedure 582 (b) Availability of the Simplified Procedure 583 (c) Circumstances Where Defendant May Avert the Simplified Procedure 584 (d) Effect of Plaintiff s Abandonment of a Claim or Part of a Claim... 584 (e) Amendment to Opt in to the Simplified Procedure 585 (f) Procedure under Rule 76 586 (i) Commencement of an Action under Rule 76 586 (ii) Pleadings and Default Judgments 586 (iii) Affidavit of Documents 586 (iv) Examinations 587 (v) Interlocutory Steps in the Simplified Procedure 587 (vi) Dismissal by Registrar 587 (vii) Notice of Readiness, Pre-trial Conference and Listing for Trial 588 (g) The Summary Trial 589

xxxiv Table of Contents (i) Mode of Trial for Actions under the Simplified Procedure... 589 (h) Costs Consequences and the Simplified Procedure 590 (i) Cost Consequences against the Plaintiff 590 (ii) Costs Consequences Against the Defendant 591 7. Case Management under Rule 77 591 (a) The Purposes of Case Management 591 (b) Availability of Case Management under Rule 77 592 (c) Assignment Required for Case Management 593 (d) Assignment to a Particular Judge 594 (e) Case Management Supervisory Powers 594 (f) Case Conferences 594 (g) Interlocutory Relief at the Case Conference 595 (h) Motions in Case-managed Cases 595 8. Setting Down and Listing for Trial 596 (a) Setting Action Down for Trial 596 (b) Content of the Trial Record 597 (c) Placing Defended Action on Trial List 597 (d) Consequences of Setting Action Down for Trial 597 (e) Effect of Listing for Trial 599 Chapter 9: Trials 601 1. Introduction 601 2. The Adversary System 603 (a) Trial Part of the Adversary System 603 (b) The Open Court Principle 604 3. Role of the Trial Judge 605 (a) The Trial Judge and the Adversary System 605 (b) The Fair Trial and Reasonable Apprehension of Bias 606 4. Trials and the Rules of Professional Conduct 609 5. The Structure of a Civil Trial 610 6. The Stages of a Trial 611 (a) Jury Selection 611 (i) Juror Eligibility 611 (ii) Juror Selection 613 (iii) Discharge of a Juror 613 (b) Arranging for the Attendance of Witnesses 613 (i) Witness Summons 613

Table of Contents xxxv (ii) Apprehension of Witness 614 (c) Party's Failure to Attend at Trial 614 (i) Consequences of Failure to Attend Trial 614 (d) Adjournments and Preliminary Matters 615 (i) Adjournments 615 (ii) Preliminary Matters including Exhibit Briefs 615 (iii) Exclusion of Witnesses 616 (e) Opening Addresses 617 (i) Purpose of Opening Addresses 617 (f) The Cases for the Plaintiff and the Defendant 618 (i) Order of Presentation 618 (ii) Taking a View 619 (g) The Manner of Examination of Witnesses 619 (i) Oral and Affidavit Evidence 619 (ii) Interpreter 620 (iii) Stages of the Examination of a Witness 621 (iv) Re-examination 622 (v) Examination by the Trial Judge 622 (vi) Further Examination 622 (h) Use of Examination for Discovery at Trial 622 (i) Use of Discovery Transcript against an Adverse Party 622 (ii) Use of Discovery Evidence When Witness Unavailable... 623 (i) Admissions as Evidence 624 (i) Formal and Informal Admissions 624 (j) Experts and Expert's Reports 625 (i) The Role of Expert Witnesses 625 (ii) The Exchange of Experts" Reports 627 (iii) Limit on Number of Expert Witnesses 629 (iv) Expert Testimony and Litigation Privilege 629 (k) The Motion for a Non-suit 630 (i) Procedure for Non-suit 630 (ii) Test for Granting a Non-suit 631 (iii) Consequences of Dismissal of Motion for a Non-suit 632 (1) Plaintiff s Reply 632 (m) Failure to Prove a Fact or Document 632 (n) Re-opening a Case 633

xxxvi Table of Contents (i) Jurisdiction to Re-open a Case 633 (o) Motion for a Mistrial 634 (i) Nature of Motion for a Mistrial 634 (ii) Discretion to Declare a Mistrial 635 (p) Closing Statements or Argument 635 (i) Purpose of Closing Statements 635 (ii) Closing Statements in a Jury Trial 636 (iii) Closing Statements in a Non-jury Trial 637 (q) Jury Verdict or Judge's Reasons for Judgment 637 (i) List of Questions 637 (ii) Jury Deliberations 638 (iii) Refusal to Accept Verdict 638 (iv) Reasons for Decision 639 Appendix Rules of Professional Conduct that Bear upon the Conduct of a Trial 641 Chapter 10: Prejudgment and Postjudgment Interest, Costs and Security for Costs 645 1. Introduction 645 2. Prejudgment and Postjudgment Interest 646 (a) The Purpose of Prejudgment and Postjudgment Interest 646 (b) Prejudgment Interest 646 (i) Prejudgment Interest at Law and in Equity 646 (ii) Prejudgment under the Courts of Justice Act 647 (iii) Rate for Non-pecuniary Losses for Personal Injury 648 (iv) Exclusions to Prejudgment Interest 648 (v) Discretion to Disallow or to Vary Prejudgment Interest... 649 (c) Postjudgment Interest 650 (i) Postjudgment Interest under the Courts of Justice Act 650 (ii) Calculation of Postjudgment Interest 650 (iii) Discretion to Disallow or to Vary Postjudgment Interest.. 651 (iv) Commencement of Interest on Costs 651 3. Costs 652 (a) The Nature of Costs 652 (b) The Role of an Award of Costs 653 (c) Costs against a Non-Party 654 (d) The Court's Approach to Costs 654

Table of Contents xxxvii (e) Scales of Costs 654 (f) Partial Indemnity Costs 655 (g) Substantial Indemnity Costs 655 (h) Full Indemnity Costs 656 (i) Part I of Tariff A 656 4. The Discretion to Award Costs 657 (a) Principles that Guide the Court's Discretion with respect to Costs 657 (i) Costs Are a Matter of Discretion 657 (ii) Costs Normally Follow the Event 657 (iii) Costs Against a Successful Party 658 (iv) Factors Relevant to the Court's Discretion to Award Costs... 658 (v) A Costs Award Must Be Reasonable and Fair 659 (vi) Ability to Pay as a Factor in Awarding Costs 660 (vii) Distributive Costs Order 660 (viii) No Order as to Costs 661 (ix) Costs in an Action under Rule 76 (Simplified Procedure) 662 (x) Costs Where Recovery within the Monetary Jurisdiction of the Small Claims Court 662 (xi) Costs Where Multiple Proceedings 662 (xii) Costs of Cross-examinations 663 (b) The Discretion to Award Substantial Indemnity Costs 663 (i) The Role of an Award of Substantial Indemnity Costs 663 5. Costs and the Self-Represented Litigant 665 (a) The Self-represented Litigant's Entitlement to Costs 665 6. Costs and Public Interest Litigation 666 (a) Public Interest Litigation and the Court's Discretion to Award Costs 666 7. Costs against a Lawyer Personally 668 (a) Jurisdiction to Award Costs against a Lawyer Personally 668 (b) The Operation of Rule 57.07 669 (c) Examples of Circumstances for Orders under Rule 57.07 670 (d) Bad Faith or Misconduct as a Basis for Ordering a Lawyer Personally to Pay Costs 671 (e) Civility and Costs Orders against a Lawyer 672 (f) Procedure for an Order under Rule 57.07 673

xxxviii Table of Contents 8. Costs and the Simplified Procedure 673 (a) Costs in Actions under the Simplified Procedure 673 9. Costs in Estate Litigation 674 (a) Contemporary Approach to Costs in Estate Litigation 674 10. Interim or Advance Costs 675 (a) Jurisdiction to Award Costs in Advance 675 (b) Situations Where Interim Costs May Be Awarded 676 11. The Various Orders as to Costs 677 (a) Various Orders as to Costs 677 (b) No Order as to Costs 677 (c) Costs in the Cause 677 (d) Costs to [named party] in the Cause 678 (e) Costs to [named party] in any Event of the Cause 678 (f) Costs to [named party] Payable Forthwith 679 (g) Costs Reserved to the Trial Judge 680 (h) Apportionment of Costs against Defendants 680 (i) Special Costs Orders after a Trial 680 (i) Bullock Order and Sanderson Order 680 (ii) Test for Sanderson Order 681 (iii) Analogous Orders 681 12. The Fixing of Costs by the Court 682 (a) Fixing Costs Is the Normal Rule 682 (b) Costs Fixed by the Registrar 682 (c) Approach to Fixing Costs 682 (d) Procedure for Fixing Costs 683 13. The Assessment of Costs by an Assessment Officer 684 (a) The Role of the Assessment Officer 684 (i) Assessment of Costs by Assessment Officer 684 (ii) Approach to Assessment 684 (iii) Costs of the Assessment 685 (b) Procedure for an Assessment of Costs 685 (i) Procedure for Assessment 685 (ii) Objections to the Assessment 686 (iii) Appeal from an Assessment 687 14. Security for Costs 687 (a) The Availability of Orders for Security for Costs 687

Table of Contents xxxix (i) Security for Costs against Plaintiffs and Applicants 687 (ii) Jurisdiction to Order Security for Costs 687 (iii) Security for Costs and the Victims Bill of Rights, 1995 688 (iv) Security for Costs against a Plaintiff or Applicant under Rule 56.01 689 (v) Test for Security for Costs 690 (vi) Impecuniosity and Security for Costs 691 (vii) Security for Costs and Counterclaims 692 (viii) Security of Costs from an Appellant 692 (b) Procedure for an Order for Security for Costs 693 (i) Motion for Security for Costs 693 (ii) Amount and Form of Security 693 (c) The Consequences of an Order for Security for Costs 694 (i) Compliance and Non-compliance with Order for Security for Costs 694 15. The Solicitors Act and the Assessment of Legal Fees 695 (a) The Assessment of Solicitor's Accounts underthe5b//c;fo/-.y,4<;/...695 (b) Jurisdiction to Assess Fees for Legal Services 695 (c) Availability of Assessment Procedure 696 (d) Disputed Retainer 696 (e) Agreement to Pay Fixed Remuneration 697 (f) Interim and Final Accounts 697 (g) Paid and Unpaid Accounts 698 (h) Assessment Requisitioned within One Month of Delivery of Account 698 (i) Time Limits for Obtaining an Assessment 698 (j) Special Circumstances 700 (k) The Assessment of a Lawyer's Accounts Procedure 701 Chapter 11: Orders and Their Enforcement 703 1. Introduction 703 2. The Definition and Nature of Orders 704 (a) Orders and Reasons for Decision 704 (b) Effect of an Order 705 (c) Order Effective from the Time of Making 705 (d) Endorsements 705 (e) Preparing an Order for Issue and Entry 706

xl Table of Contents (f) The Formalities of Orders 707 (g) Orders and Foreign Currency 707 (h) Settling Disputes about the Form of the Order and Issuing the Order 707 (i) Entering the Order 709 3. Setting Aside or Varying an Order 709 (a) The Court's Jurisdiction to Set Aside or Vary an Order 709 (i) Sources of Jurisdiction 709 (b) The Court's Inherent Jurisdiction to Set Aside or Vary an Order... 710 (c) Consent Orders 711 (d) Authority under Rule 59.06(1) 711 (e) Authority under Rule 59.06(2) 711 (f) Authority under Rule 37.14 713 (g) Authority under Rule 38.11 716 4. Enforcement of Orders 717 (a) Enforcement Mechanisms Introduction 717 (b) The Role and Supervision of Registrars and Sheriffs 718 5. Order for Payment or Recovery of Money 718 (a) Judgment Debtors and Judgment Creditors for the Payment of Money 718 (b) Writ of Seizure and Sale under Rules 60.02(1) and 60.07 719 (i) Obtaining Writ of Seizure and Sale 719 (ii) Enforcement of the Writ of Seizure and Sale 720 (iii) Seizure of Personal Property 721 (iv) Sheriffs Sale of Land 722 (v) Creditors' Relief Act 722 (vi) Duration of a Writ of Seizure and Sale 723 (vii) Withdrawal of Writ of Seizure and Sale 724 (c) Garnishment under Rules 60.02(1) and 60.08 724 (i) The Nature of Garnishment 724 (ii) Duration of Garnishment 725 (iii) What Is Garnishable? 725 (iv) Obtaining Garnishment 726 (v) Enforcement of Garnishment 726 (vi) Garnishment Disputes and Hearings 727 (vii) Payment pursuant to Garnishment Discharges Debt 727 (viii) Termination of Garnishment 728

Table of Contents xii (d) Writ of Sequestration under Rules 60.02( I) and 60.09 728 (i) The Nature of Sequestration 728 (ii) Obtaining a Writ of Sequestration 728 6. Equitable Execution and the Appointment of Receiver under Rule 60.02(1) 729 (a) Jurisdiction to Appoint Receiver 729 7. Order for the Possession of Land under Rule 60.03 730 (a) Obtaining Possession of Real Property 730 (b) Duration of Writ of Possession 731 8. Vesting Order under section 100 of the Courts of Justice Act 731 (a) Jurisdiction to Grant Vesting Order 731 9. Order for the Recovery of Personal Property under Rule 60.04 732 (a) Recovery of Personal Property 732 10. Interpleader under Rules 43 and 60.13 733 (a) Interpleader Jurisdiction 733 (b) Dispute of Ownership of Property Seized by Sheriff 733 11. Order under Rule 60.05 to Do or Abstain from Doing any Act and Contempt Order under Rule 60.11 734 (a) Enforcement of Orders and the Court's Contempt Power 734 (b) Criminal Contempt 735 (c) Civil Contempt 736 (d) Proceedings for a Contempt Order 737 (e) Disposition of a Contempt Motion 738 12. Enforcement by or against a Person Who Is Not a Party under Rule 60.06 740 (a) Enforcement of Orders by and against Non-parties 740 13. Examination in Aid of Execution under Rule 60.18 740 (a) The Availability of Examinations in Aid of Execution 740 (b) Examination of Person other than Debtor 741 14. Foreign Judgments 742 (a) The Enforcement of Foreign Judgments 742 (b) The Reciprocal Enforcement of Judgments Act 742 (c) The Enforcement of Foreign Judgments at Common Law 744 (d) The Real and Substantial Connection Test and the Enforcement of Foreign Judgments 745 (e) Defences to Action to Enforce a Foreign Judgment 746

xlii Table of Contents Chapter 12: Appeals 749 1. Introduction 749 2. The Nature of Appeals in our Legal System 752 3. The Right of Appeal 753 (a) Introduction 753 (b) The General Civil Appeal Structure in Ontario 754 (c) Special Rights of Appeal 756 (d) Appeals from Dispositions relating to Costs 758 (e) The Legal Effect of a Leave to Appeal Requirement 760 (f) The Significance of Whether the Order Sought to Be Appealed Is Final or Interlocutory 762 (i) The Final and Interlocutory Distinction: Policy and Tests 763 (ii) The Order as Made 765 (iii) The Legal Nature, and not the Practical Effect, of the Order Governs 766 (iv) Multiple Parties and Claims 766 (v) Pre-emptive Orders 767 (vi) Focus on Substantive Rights 767 (vii) Non-Parties 768 (viii) Res Judicata and Issue Estoppel 770 (ix) Is the Hendrickson v. Kallio Test Workable? 772 4. Where No Right of Appeal Exists or Its Existence Is Problematic 772 (a) Introduction 772 (b) Is it an Order? 773 (c) Default Judgment 774 (d) An Order Granting or Refusing Leave to Appeal 775 (e) An Order Dismissing an Application 775 (f) An Appeal from the Reasons Alone 777 (g) Whether the Order Is Signed and Entered 777 (h) An Order Made in the Course of a Trial 778 (i) Where a Statute Provides that There Is No Appeal from the Order 779 (j) Statutes that Provide that the Order Is Final 780 (k) Right of Appeal Overborne by Inherent Jurisdiction 781 5. Jurisdiction to Hear an Appeal 781 (a) Introduction 781 (b) Appeals from an Order of a Superior Court Judge 781

Table of Contents xliii (i) General Rule: Appeal Lies to the Court of Appeal 781 (ii) Three Exceptions: Appeal Lies to the Divisional Court 782 (1) If It Is an Interlocutory Order, It Is Appealable to the Divisional Court with Leave 782 (2) If the Order Is for Not More than $50,000, It Is Appealable to the Divisional Court 782 (3) Where the Appeal Lies to the Divisional Court under an Act Other than the Courts of Justice Act 787 (c) Federal Legislation and Appellate Courts 788 (d) The Composition of the Appellate Court to Deal with Appeals 790 (e) Appeals to Two Courts: the Piggy-back Provisions of Section 6(2) of the Courts of Justice Act 791 (f) How to Rectify an Appeal Made to the Wrong Court 794 The Powers of an Appellate Court 795 (a) Introduction 795 (b) Historical Sources 796 (c) Inherent Jurisdiction 797 (d) Power to Quash an Appeal 799 (i) Introduction 799 (ii) Lack of Jurisdiction 800 (iii) Manifestly Devoid of Merit 800 (iv) Appeal Is Moot 801 (v) Where Appellant Has Taken Advantage of the Judgment 802 (e) Power to Make Interim Order to Prevent Prejudice 803 (f) Power to Admit Fresh Evidence 804 (g) Power to Permit a New Issue to be Raised on Appeal 807 (h) Power to Dismiss or Allow an Appeal 808 (i) Power to Make the Order that Ought to or Could Have Been Made 810 (j) The Power to Order a New Trial 814 (k) Power to Make Any Other Order or Decision that Is Considered Just 815 (1) Power to Make an Order in Favour of a Party Who Did Not Appeal 816 (m) Power to Allow an Appeal on Consent 817 (n) Power to Rehear an Appeal 818 (o) Fraudulent Evidence and the Power to Set Aside a Decision 818

xliv Table of Contents 7. The Standards of Appellate Review 819 (a) Introduction 819 (b) Questions of Law 821 (c) Questions of Fact Decided by a Judge 821 (d) Questions of Mixed Fact and Law 823 (e) Discretionary Decisions 823 (f) Jury Verdict Liability on the Facts 825 (g) Judge's Assessment of Damages 826 (h) Jury's Assessment of Damages 826 (i) Appeals from Orders of a Master 827 8. Procedures Governing Appeals 830 (a) Introduction 830 (b) Procedures Governing Appeals to the Superior Court 831 (c) Leave to Appeal to the Divisional Court and to the Court of Appeal 832 (i) General 832 (ii) Leave to Appeal to the Divisional Court 833 (iii) Leave to Appeal to the Court of Appeal 834 (d) Commencement of Appeals 837 (e) Extension of Time for Appealing 839 (f) Stay Pending Appeal 839 (i) Introduction 839 (ii) Automatic Stay 840 (iii) Stay by Order 842 (iv) The Discretion Respecting the Lifting or Granting of a Stay 843 (v) The Effect of a Stay 843 (vi) Stay Respecting an Appeal to the Supreme Court of Canada 844 (g) Motion for Security for Costs 844 (h) Perfecting Appeals 846 (i) Dismissal for Delay 848 (j) Cross-appeals 850 (k) Amendment of Notice of Appeal and Cross-appeal 851 (1) Factums in the Divisional Court and the Court of Appeal 851 (m) Abandoned Appeals 853

Table of Contents xlv (n) Motions in the Divisional Court and the Court of Appeal 854 (o) Intervention in the Divisional Court or the Court of Appeal 854 9. Appeal to the Supreme Court of Canada from an Ontario Order or Judgment 855 Index 857