In Ontario, practice directions provide guidance on how courts expect proceedings to be conducted. It is imperative to be aware of and understand both province-wide and regional practice directions before filing any court documents or appearing before the court. Both province-wide and region-specific practice directions are listed on the Superior Court of Justice website under Practice and Procedure.
Parties must ensure that court documents being filed comply both with the Rules of Civil Procedure and with the relevant practice directions. Penalties for failure to comply with the applicable practice directions vary from rejection of the court documents at the counter to a costs award against the party who failed to comply.
Below is a summary of key practice directions as of the date of this newsletter that parties should be aware of when dealing with construction matters.
Manner to address Masters
Effective December 7, 2018, masters should be addressed as “Your Honour”. Gowning requirements remain the same. Counsel are not required to gown for appearances before masters.
Construction Lien Motions before a Master (Toronto)
Long and short motions in construction lien actions must be scheduled through the Assistant Trial Coordinator at the Masters’ Office.
Prior to scheduling a long motion before a Construction Lien Master, parties are required to attend a telephone case conference with the Master who will be hearing the motion in order to determine the length of time required and set a timetable for any steps required on the motion.
Motions made without notice and consent motions in construction lien actions are heard daily from 9:30 to 10:00 a.m.
Motions in writing in a construction lien file or reference should be filed with the Assistant Trial Coordinator for the Construction Lien Masters located on the 6th Floor, 393 University Avenue.
Special appointments before a Construction Lien Master
If a party is intending to bring more than 3 motions at the same time at the ex parte court, a special appointment is to be made through a Construction Lien Trial Coordinator. The moving party will have to send an e-mail to the Construction Lien Trial Coordinator listing all the matters, the purpose of the hearings and total time required for the motions. A special appointment before a Construction Lien Master will be typically provided for the next or the following day, depending on the total time required.
Motions to dismiss/discharge construction liens
Motions to dismiss lien actions and discharge liens preserved in Toronto are typically brought before a Construction Lien Master at the ex parte court. Masters in Toronto are very unlikely to hear motions which relate to proceedings in other jurisdictions.
When bringing a Motion to dismiss/discharge, ensure to review title carefully and make a note of any other construction liens that may have been registered on title in relation to the project. In the event that other liens where registered, it is prudent to identify those liens as part of the supporting affidavit and address the manner in which those liens were disposed of.
| No. | Reg. Date | Instrument No. | Lien Claimant | Lien Amount | Date vacated | Application to Delete instrument No. |
|---|---|---|---|---|---|---|
| 1 | Jan 2, 2019 | AB123654 | ABC Corp. | $120,000.00 | Feb 10, 2019 | AB465321 |
In order to expedite the hearing time, it is highly recommended to provide the Master with a chart, separately from the motion record, which would provide a summary of each lien, such as the sample chart provided below:
Electronic filing of motion materials on long motions before judges (Toronto)
Effective April 3, 2018, on long motion before judges in Toronto, in addition to filing of the paper copies, parties must file electronic copies of their materials on a USB stick. The USB must include a copy of the motion materials, including the factum, where required. The naming convention of the electronics documents can be found on the Superior Court of Justice website under Practice and Procedure.
Elimination of Placeholder Motions in Toronto and Newmarket
Where a motion has been booked through the motion scheduling unit (Toronto) or Trial Coordinator (Newmarket), a Notice of Motion must be served and filed no later than 10 days after the motion date is booked. In the absence of the Notice of Motion, any booked motion date will be vacated without notice to counsel or the moving party.
Facta
Facta are required for long civil motions and encouraged for all other motions unless otherwise directed by a judge. In the Toronto region, no factum may exceed 30 pages unless leave is granted The Central East region allows a maximum of 25 pages. In all other regions, no factum may exceed 20 pages in length. In Yim v. Song, 2016 ONSC 1707 (S.C.J.), failure to follow practice directions had an effect on costs. Neither party followed paragraph 64 of the Central West Consolidated Practice Direction which limits facta to 20 pages unless leave is granted to exceed that limit.
Under special circumstances, a judge may grant leave to deliver lengthier facta. In Shibish v. Honda of Canada Inc., 2010 ONSC 6766 (S.C.J.), for example, Justice Robert granted leave to all parties to submit facta that exceeded the 30-page limit prescribed by the practice direction.
Books of authorities
Judges of the Superior Court of Justice, Divisional Court and Court of Appeal are supplied with a List of Often-Cited Cases. This list contains certain cases that are frequently relied on by parties. Parties need no longer include listed authorities in any book of authorities, however, extracts from those authorities which counsel intend to refer to the court must be included in facta or books of authorities.
First pre-trial conference before a Construction Lien Master in Toronto
Once the matter has been referred to a Construction Lien Master, a first pre-trial conference will be scheduled. The following is a practical checklist to documents that should be presented by the parties at the first pre-trial conference:
- The pleadings brief should include the pleadings from the main action as well as the pleadings from any subcontractors’ actions;
- Brief of Documents to be relied upon during the pre-trial:
- Updated Parcel Registers (retrieved 12 days before the hearing date);
- List of existing lien claimants;
- Chart explaining registrations on title, including mortgages, easements etc. (see sample chart below);
- Copies of construction liens and/or orders vacating the liens;
- Order for trial and notice of trial with affidavits of service (served 10 days before the hearing);
- Copy of judgment of reference;
- Execution searches (conducted 12 days before the hearing);
- Bankruptcy searches (conducted 12 days before the hearing);
- Seizure letters;
- Any correspondence with subcontractors regarding acknowledgements and releases.
Sample chart of documents registered on title:
| No. | Reg. Date | Instrument No. | Party with registered interest | Lien Amount | Document | Type of Deletion | Notes |
|---|---|---|---|---|---|---|---|
| 1 | March 5, 2015 | AB123456 | Royal Bank of Canada | n/a | Mortgage | n/a | Mortgage in the amount of $10,000,000 |
Gowning for counsel
Counsel are required to gown for all trials, motions and appeals before the presiding judge in the Ontario Superior Court of Justice. Counsel who are pregnant are free to modify their traditional court attire in order to accommodate their pregnancy as they see fit, including dispensing with a waistcoat and tabs.
Counsel are not required to gown for appearances before masters or judges and deputy judges of the Small Claims Court.
Counsel are not required to gown before a Superior Court judge when appearing in assignment court, case conferences, settlement conferences, trial management conferences, trial scheduling courts, or pre-trials.
Motions for leave to appeal to the Divisional Court
As of July 1, 2017, motions for leave to appeal to the Divisional Court from interlocutory orders of a judge must be brought in writing and leave must be obtained from a panel of three Divisional Court judges, rather than a single judge. Such motions for leave to appeal must be filed at the Divisional Court Office in Toronto.
Three printed copies of the motion record, factum and transcripts, if any, must be filed. It is also mandatory to include a copy of the signed and entered order from which leave to appeal is sought and a costs outline. Filing materials in electronic format, in addition to hard copies, is strongly encouraged.
Appeals from interlocutory orders obtained in a construction lien action are now permitted with leave, unless the amount claimed is $10,000 or less.
Motions to the Court of Appeal
A single judge of the Court of Appeal hears motions Monday through Friday in chambers court located in Courtroom 7 at Osgoode Hall. From September to June, motions court starts at 10 a.m., unless the court orders otherwise. In July and August, motions court starts at 9:30 a.m., unless the court orders otherwise.
If the moving party’s estimated time for arguing a motion is 15 minutes or more, the moving party must serve and file a factum. If a party does not file a factum on a motion, the party will be limited to 15 minutes of oral argument at the hearing of the motion.
Self-represented parties’ motions receive priority on Wednesdays and Thursdays, therefore parties that are represented by lawyers are encouraged to schedule their motions on other days of the week in order to avoid delays in having their motions heard.
When a party seeks to bring a motion without notice, it is mandatory that the notice of motion indicates the reasons for bringing the motion on a without notice basis. Upon reviewing the notice of motion, the judge will have to be satisfied that service of the notice of motion is unnecessary.
Long motions in Milton
In Milton, a long motion must be confirmed no later than three weeks prior to the date the motion is to be heard, and all material must be filed by the moving party by that date. The litigant or counsel, as the case may be, will be advised of this requirement at the time the motion is booked.
If the motion material and the confirmation are not filed at least three weeks in advance of the date the motion is to be heard, the motion will be removed from the list and will not be heard. If possible, the time can be used to hear another motion by arrangement with the trial office.
In Onunkwo v. Anambra State Progressive Assn., Canada, 2015 ONSC 2006 (S.C.J.), the Applicant confirmed a long motion 17 days prior to the hearing date rather than the required three weeks. The matter was struck from the list because it was not confirmed in time. The applicant’s request that the motion be reinstated was denied. It was no answer that the applicant was not aware of the practice direction. Judicial resources had been reallocated and there was no longer a judge available to hear the motion. The parties were free to arrange for new date for the matter to be heard.
Electronic filing and issuance of court documents
On April 24, 2017, the Ministry of the Attorney General launched Phase 1 of the E-Filing Pilot in Ontario. The Pilot was initially launched in five Court locations across Ontario, being Brampton, Ottawa, London, Newmarket and Sudbury. Province-wide expansion of Phase 1 started in November, 2017 and notices of action and statements of claim can now be issued electronically.
On May 28, 2018, the Ministry of the Attorney General launched another phase of the Civil E-Filing Pilot which allows the filing of the following documents online:
- Statement of Claim – Form 14A, Form 14B or Form 14D
- Notice of Action – Form 14C
- Affidavit of Litigation Guardian of a Plaintiff under a Disability (Form 4D)
- Request for Bilingual Proceedings (Form 1)
- Consent to file documents in French
- Statement of Defence – Form 18A (with only up to 50 Defendants)
- Notice of Intent to Defend – Form 18B
- Consent or Court Order (Form 59A) required in support of filing a document online
- Proof of Service for documents filed online (Form 16B, 16C, 17A, 17B, 17C or any documents listed in Rule 16.09).
All other forms must still be filed in-person at a civil courthouse.
Construction claims that require the issuance of the Certificate of Action must be issued at the courthouse in person and cannot be issued online.
No crossclaims, counterclaims or third-party claims can be filed through the civil e-filing system at this time.
If a defendant has been noted in default, the system will automatically populate a message to that effect and will not allow to file a notice of intent or statement of defence online.
It is also important to note that a party who electronically files a document through the Civil Claims Online Portal and intends to rely on the document in a hearing or conference must include the document in paper format together with any documents required to be filed by the party for the purposes of the hearing or conference.
Conclusion
The above is not an exhaustive list of the practice directions issued by Ontario courts. It is prudent to review all practice directions regularly and to be aware of the particular practices in the various jurisdictions to avoid delays and additional costs.