RULE 40: CASE MANAGEMENT IN ONTARIO COURT OF JUSTICE

CASE MANAGEMENT IN CERTAIN AREAS ONLY

40. (1) This rule applies only to cases in the Ontario Court of Justice. O. Reg. 114/99, r. 40 (1).

EXCLUDED CASES

(2) This rule does not apply to,

(a) enforcements;

(b) child protection cases; or

PARTIES MAY NOT LENGTHEN TIMES

(3) A time set out in this rule may be lengthened only by order and not by the parties’ consent under subrule 3 (6). O. Reg. 114/99, r. 40 (3).

FIRST COURT DATE

(4) The clerk shall, on or before the first court date,

(a) confirm that all necessary documents have been served and filed;

(b) refer the parties to sources of information about the court process, alternatives to court (including mediation), the effects of separation and divorce on children and community resources that may help the parties and their children;

(c) if no answer has been filed in response to an application, or if no affidavit has been filed in response to a motion to change a final order or agreement, send the case to a judge for a decision on the basis of affidavit evidence or, on request, schedule a case conference; and

Note: On July 1, 2004, clause (c) is revoked and the following substituted:

(c) if an answer has been filed in response to an application, or if an affidavit has been filed in response to a motion to change a final order or agreement, confirm that the case is ready for a hearing, case conference or settlement conference and schedule it accordingly;

See: O. Reg. 89/04, ss. 15, 18.

(d) if an answer has been filed in response to an application, or if an affidavit has been filed in response to a motion to change a final order or agreement, confirm that the case is ready for a hearing, case conference or settlement conference and schedule it accordingly. O. Reg. 114/99, r. 40 (4); O. Reg. 202/01, s. 8.

Note: On July 1, 2004, clause (d) is revoked and the following substituted:

(d) if no answer has been filed in response to an application, send the case to a judge for a decision on the basis of affidavit evidence or, on request of the applicant, schedule a case conference; and

(e) if no affidavit has been filed in response to a motion to change a final order or agreement, send the case to a judge for a decision on the basis of affidavit evidence or, on request of a party who made the motion, schedule a case conference.

See: O. Reg. 89/04, ss. 15, 18.

NOTICE, CASE NOT SCHEDULED FOR TRIAL AFTER 200 DAYS

(5) If a case has not been scheduled for trial within 200 days after it was started, the clerk shall serve a notice (Form 39) on the parties by mail, fax or electronic mail saying that the case will be dismissed without further notice unless one of the parties, within 30 days after the notice is served,

(a) files an agreement signed by all parties and their lawyers, if any, for a final order disposing of all issues in the case, and a notice of motion for an order carrying out the agreement; or

(b) arranges a case conference or settlement conference for the first available date. O. Reg. 114/99, r. 40 (5).

DISMISSAL AFTER NOTICE

(6) If the clerk serves a notice under subrule (5) and no party takes any of the steps set out in clauses (5) (a) and (b) within 30 days after the notice is served, the clerk shall prepare and sign an order dismissing the case, with no costs payable by any party. O. Reg. 114/99, r. 40 (6).

SERVICE OF DISMISSAL ORDER BY CLERK

(7) The clerk shall serve the order on each party by mail, fax or electronic mail. O. Reg. 114/99, r. 40 (7).

SERVICE OF DISMISSAL ORDER BY LAWYER ON CLIENT

(8) A lawyer who is served with a dismissal order on behalf of a client shall serve it on the client by mail, fax or electronic mail and file proof of service of the order. O. Reg. 114/99, r. 40 (8).

JUDGE MAY SET CLERK’S ORDER ASIDE

(9) A judge may, on motion, set aside an order of the clerk under subrule (6). O. Reg. 114/99, r. 40 (9).

TRANSITIONAL PROVISION

(10) If a case was started before these rules come into effect, but a party serves and files a document or requests a case conference after they come into effect,

(a) the clerk shall serve the notice (Form 39) mentioned in subrule (5) if the case has not been scheduled for trial within 200 days after it was started or within 90 days after the party files the document or requests the case conference, whichever comes later; and

(b) once the notice is served, subrules (5) to (9) apply with necessary changes. O. Reg. 114/99, r. 40 (10).

41. Omitted (revokes other Regulations). O. Reg. 114/99, s. 41.

Note: On July 1, 2004, Rule 41 is revoked and the following substituted: