Commencement of proceeding

• The plaintiff files a Notice of Action or Statement of Claim to be issued by the court registrar, and must serve it on all defendants. The plaintiff must also file an Information for Court Use Form (Form 14F). Unlike Rule 77, there is no choice of fast or standard track for the action.
• If no defence has been filed and the plaintiff has not obtained a final order or judgment or had the action set down for trial or summary trial within 2 years after commencement, the registrar must make an order dismissing the action after first providing the plaintiff with 45 days notice.

Mediation

Rule 24.1 (Mandatory Mediation) applies to civil actions in Toronto that are governed by Rule 78. However, the timelines for conducting the mediation session differ for Rule 77 and Rule 78 cases. For Rule 78 cases:

• Parties are to conduct mediation at the earliest stage in the proceeding at which it is likely to be effective, but in any event, mediation must occur within 90 days after the action is set down for trial.
• In wrongful dismissal and simplified procedure cases, mediation must occur within 150 days after the close of pleadings.

Case Management

With the consent of the parties and on motion by any party, a judge or case management master may assign an action to case management under Rule 77. Alternatively, on a party’s motion or on the initiative of the court, a case may be assigned to case management under Rule 77 where a party has taken steps that amount to chronic and substantial obstruction of the action.

Case Conference

• There are fewer opportunities for case conferences under Rule 78, as compared to Rule 77.
• At a case conference, a judge or case management master may create or amend a timetable, require written reports as to compliance with any directions that have been given, make an order for interlocutory relief on consent of the parties, and assign the action to case management under Rule 77.

Setting Action Down For Trial

A party must set an action down for trial by filing a trial record, as prescribed in Rule 48.

Status Notices & Status Hearings

• Where two (2) years have passed since a defence was filed and the action has not been terminated or set down for trial, the registrar will send a status notice to the parties advising that the case will be dismissed unless it is set down for trial or terminated within 90 days.
• Upon receipt of the status notice, a party may request a status hearing. At a status hearing, the court may dismiss the action for delay, or set time periods for the completion of the remaining steps in the action.
• Note that parties may avoid attending a status hearing where they have agreed on a timetable for the completion of all remaining steps in the action, including a date for setting the action down for trial that is within 12 months of the date of the status hearing.

Pre-Trial Conference & Trial Dates

• After an action is set down for trial, the registrar will schedule a pre-trial conference, giving the parties at least 90 days notice.
• At least five days in advance of the pre-trial, each party must file a pre-trial memorandum including a settlement brief and a trial management brief. Details of what must be included in these documents are set out in Rule 78.
• If the action is not settled at the pre-trial conference, the judge or case management master may establish a timetable and set a date for trial, or order a case conference if it is impractical to establish a timetable.
• Note that once a trial date has been fixed, the court will enforce a strict "no-adjournment" policy. Trial dates will only be vacated in the event of an emergency.

For more information on Rule 78, please refer to: