Commercial List, Toronto

Practice Direction (Superseded)

The Commercial List was established in 1991 for the hearing of certain actions, applications and motions in the Toronto Region involving issues of commercial law. The special procedures adopted for the hearing of matters on the Commercial List expedite the hearing and determination of these matters and they have met with considerable approval.

This revision of the Practice Direction contains numerous modifications from the August 8, 1995 version. All counsel appearing in matters on the Commercial List are expected to know and follow the current Practice Direction.

The Commercial List remains, in the first instance, voluntary, except for bankruptcy matters. Applicants and plaintiffs may continue to set other matters that qualify for the Commercial List down for hearing either on the Commercial List or elsewhere. There is, however, provision for any party to have a matter transferred to, or removed from, the Commercial List.

A continuous re-evaluation process by the Court and the Commercial List Users' Committee determines whether (i) other matters should be added to those matters which may be listed on the Commercial List or (ii) its procedures should be further modified or continued. This Practice Direction is to govern the conduct of matters on the Commercial List after April 1, 2002, subject to further amendments as required.

The Honourable Patrick J. LeSage Chief Justice of the Superior Court of Justice Osgoode Hall February 18, 2002

Matters Eligible for the Commercial List

1) Matters which may be listed on the Commercial List are applications, motions and actions which in essence involve the following:

a) Bankruptcy and Insolvency Act;
b) Bank Act, relating to realizations and priority disputes;
c) Business Corporations Act (Ontario) and Canada Business Corporations Act;
d) Companies' Creditors Arrangement Act;
e) Limited Partnerships Act;
f) Pension Benefits Act;
g) Personal Property Security Act;
h) receivership applications and all interlocutory motions to appoint, or give directions to, receivers and receiver/managers;
i) Securities Act;
j) Winding-Up and Restructuring Act;
k) Credit Unions and Caisses Populaires Act, relating to credit unions and caisses populaires under administration or that are being wound up or liquidated; and
l) such other commercial matters as a judge presiding over the Commercial List may direct to be listed on the Commercial List (See 771225 Ontario Inc. v. Bramco Holdings Co. Ltd., [1993] O.J. No. 1772 and Maple Valley Acres Limited v. CIBC, [1992] O.J. No. 2610).

In considering whether to make a direction under sub-paragraph 1) l), the judge may take into account the current and expected caseload of matters listed on the Commercial List.

Judges, Court Officials, Courtrooms and General Procedures

2) The Commercial List shall be administered through the facilities of the Commercial List Office, 10th Floor, 393 University Avenue, Toronto M5G 1E6 (fax: (416) 327-6228).

3) Matters listed on the Commercial List, including bankruptcy matters, shall usually be heard in courtrooms on the 8th floor at 393 University Avenue, Toronto.

4) If counsel are aware that a judge sitting on the Commercial List should not hear a particular matter, the Commercial List Office should be advised.

5) Co-operation, communication and common sense shall continue to be the principles of operation of the Commercial List.

Originating Process

6) Actions and applications under sub-paragraphs 1a) to k) intended to be listed on the Commercial List may be issued in the Commercial List Office. Otherwise, all originating processes shall be issued from the appropriate office of the Superior Court of Justice as provided in the Rules of Civil Procedure.

7) For all applications, an initial return date must be obtained from the Commercial List Office or selected by counsel in conformity with the provisions of paragraphs 15 to 17.

Place of Hearing

8) Only Toronto Region matters can be listed on the Commercial List (unless, for special reasons, authorization is given by the supervising judge); aside from urgent insolvency matters, there should be a material connection to the Toronto Region over and above the location of counsel. Matters listed on the Commercial List shall only be heard in Toronto. With respect to motions concerning matters from outside the Toronto Region, including transfers, or where an unrepresented party resides elsewhere or where the office of the solicitor of record of a party is located elsewhere, either a consent or an order for general leave under rule 37.03(4) must be obtained for the matter to be heard in Toronto.

Applications for Transfer

9) Matters may be transferred to or removed from the Commercial List on a motion to a judge sitting to hear matters on the Commercial List.

10) A matter may be provisionally transferred to the Commercial List by a judge who is hearing the matter or a proceeding in the matter but who is not sitting to hear matters on the Commercial List, with the consent of all parties appearing. Such provisional transfer shall be for the purpose of bringing an application for transfer in accordance with paragraph 9) by one of the parties or as the judge may direct.

11) A matter may be transferred to the Commercial List by the Commercial List Office staff if the transfer is on consent of all parties, a Request Form and Case Timetable are fully completed and the matter is a Toronto Region matter which clearly falls within the categories of sub-paragraphs 1a)-k).

Court Documents

12) The name of the court in the title of proceedings of matters listed on the Commercial List shall be: "Superior Court of Justice - Commercial List". All Notices of Application and Notices of Motion involving the Commercial List shall state that the application or motion will be made to "a judge presiding over the Commercial List at 393 University Avenue, Toronto".

13) All parts of the front and the back of a Request Form must be completed for all cases and for each proceeding (including 9:30 a.m. matters, matters added to the Commercial List and all other attendances) and the form must be signed by all counsel or an explanation for not doing so must be given. If all counsel cannot sign the same form, they may sign individual copies. Completed Request Forms may be faxed to the Commercial List Office at (416) 327-6228. Copies of the current Request Forms are available from the Commercial List Office.

14) A Case Timetable should be completed to accompany the Request Form. If this cannot be done before the matter is first spoken to (it being recognized that the schedule may depend on the setting of a hearing date), a Case Timetable should be agreed among counsel as soon as possible thereafter and a copy sent to the Commercial List Office. In the event that counsel cannot agree on a schedule, counsel should attend before the supervising judge in chambers (see paragraph 25)). It is expected that preliminary procedures shall be completed sufficiently in advance of the deadline dates to allow for consideration of the matter by counsel and for some subsequent slippage in the timetable. If a step is not completed in accordance with the Case Timetable, counsel are expected to get the matter back on schedule as soon as possible: (see Re: Mernick (1992), 14 C.B.R. (3d) 263). Copies of the current Case Timetable form are available from the Commercial List Office.

Dates for Applications, Motions and Trials

15) The Commercial List Office shall maintain the Commercial List. The office staff may assign initial hearing dates for matters requiring 1 day or less for hearing ("short matters").

16) The supervising judge or designate may assign initial hearing dates for all other matters, which, if paragraph 25) is complied with, may be made in chambers at 9:30 a.m.

17) For all applications and motions for which a date has not otherwise been set, the application or motion shall initially be made returnable in the assignment court held on the first Monday of a month (or the first Tuesday, if Monday is a holiday) beginning at 9:30 a.m. The date for hearing shall thereafter be assigned by the supervising judge. Notices of Application and Notices of Motion for such matters shall state that the application or motion is to be heard on the initial return date "and thereafter as the judge may direct". Dates for the hearing of petitions in bankruptcy shall also be set at this assignment court.

18) For trials and trials of issues, a motion to set a hearing date shall be made, unless the matter is otherwise scheduled by the supervising judge or designate in chambers on consent or on the appearance of all parties. The motion should be made to the supervising judge or designate, either as a chambers motion under paragraph 25) or by special appointment. A trial date shall not be set unless the parties have completed a Case Timetable (which may be obtained from the Commercial List Office).

19) For a scheduling motion to a judge to be heard at an assignment court or in chambers, counsel should try to provide a list of 3 mutually convenient and disparate dates from which the judge may select. Counsel are expected to check with the Commercial List Office for available dates immediately prior to the motion.

20) Except where special circumstances otherwise require, in selecting a return date for a matter, counsel are expected to allow reasonable time for all preliminary steps to take place before the return date (see paragraph 14). Counsel are encouraged and expected to consult among themselves in this regard, so that matters can be dealt with on the scheduled return date without further adjournment.

21) Counsel may specify the return date for a matter as "on a date to be established by the Commercial List Office". A list of these matters will be maintained by the Commercial List Office. Matters set down on this basis which are not heard within 3 months shall be struck from the list, unless otherwise ordered on a chambers motion to the supervising judge or designate. If counsel are not able to resolve scheduling issues among themselves, a chambers motion shall be made for a date and draft timetables shall be provided to the judge by each party.

22) A list of matters scheduled to be heard the following day will be posted on the bulletin board at 393 University Avenue by 4:00 p.m. Information about matters listed for the following day may also be obtained by calling 327-5045 after 4:00 p.m.

Estimates of Required Time

23) A realistic estimate of the time required for hearing the matter must be stated in the Request Form. If such an estimate cannot be given on the initial return of a matter, the Request Form must be appropriately amended when the matter is subsequently re-scheduled. If all parties do not sign the Request Form, the initial return of the matter shall be for only a 10 minute scheduling hearing. Counsel are expected to allocate the estimated hearing time appropriately among themselves, failing which the Court shall assume that counsel have agreed to an equal division of time. If the time estimates in the Request Form becomes obsolete, then it is to be revised by notice to the Commercial List Office, giving the reason for the change.

24) The Court may attempt to fix not only the date, but also the time, of the hearing, in appropriate situations. This shall require the co-operation of all counsel to correctly estimate the time required for their matters, to complete them within the time previously scheduled and to minimize wasted time for all concerned.

Chambers Matters

25) The supervising judge or designate will be available in chambers at 9:30 a.m. on each day to deal with ex parte, urgent, scheduling and consent matters, each of which must take not more than 10 minutes. Counsel must book these chambers matters through the Commercial List Office and these bookings will be made to allow the Chambers Judge to hear all chambers matters by 10:00 a.m. Counsel are expected to have discussed the matter in advance and to have prepared a draft resolution for consideration by the Chambers Judge. If additional judges are required for the 9:30 a.m. matters, the Commercial List Office will attempt to arrange for them. Counsel should file the materials for the appointment on the previous day, so that the judge is aware of the nature of the matter to be considered.

26) Ex parte matters on the Commercial List will be rare. Counsel shall be required to justify the reason for not notifying the respondents. In most cases, notice shall be required, particularly if the matter is part of an ongoing dispute and there are solicitors known to be representing the respondents, even if in respect of other matters.

27) Motions to have matters listed on the Commercial List under paragraph 1l) should be accompanied by the consent of the other counsel involved or a completed Request Form so that the judge may endorse a fiat either granting or refusing the motion.

28) Following the completion of a Chambers matter, counsel are expected to return the Court materials to the Commercial List Office (after checking with the Chambers registrar) and to ensure that the fees involved for such attendance have been paid.

Adjournments and Settlement

29) Counsel shall be expected to be ready to proceed with matters for which hearing times have been agreed to or set; adjournments of previously scheduled matters shall be granted only in special circumstances and for a material reason. Counsel are expected conscientiously to have sought to resolve most adjournments and waiting periods among themselves before a hearing, in a way which minimizes inconvenience and difficulty for the parties. Parties are expected to have retained counsel promptly and requests for adjournments because counsel have not been retained promptly or because new counsel have been retained just prior to the hearing shall be dealt with accordingly. Applications for adjournments on consent should be forwarded to the Commercial List Office or, if directed by the supervising judge, shall be spoken to at the next available 9:30 a.m. sittings; counsel are expected to ensure that adjournments are sought at the earliest opportunity, so that time is not blocked which could be used for other matters. It is expected that the first counsel to speak to a proposed adjournment shall be in a position to outline the position of other counsel appearing.

30) If an adjournment of a previously scheduled matter is to be sought or appears likely to be required, the Commercial List Office must be alerted as soon as possible to accommodate rescheduling of another matter or alerting counsel on standby matters.

31) If a matter is adjourned to permit the continuation of realistic settlement discussions and the matter is not settled within a reasonable time, a report should be made to the supervising judge through the Commercial List Office on the status of those discussions. This report should be made within 30 days and may be made in court, in chambers or by letter, as appropriate.

32) Where appropriate, matters may be scheduled to be heard on a "standby" basis for a particular date. In these cases, counsel should be prepared to proceed on short notice or they must keep the Commercial List Office advised of times when they become unavailable.

33) Counsel on Commercial List matters are expected conscientiously and continuously to canvass the matter of settlement and to advise promptly of all settlements, or matters which are reasonably likely to settle, so that other matters may be rescheduled. Judge to Hear Whole Matter

34) It is anticipated that a judge who determines a substantive proceeding in a matter will continue to hear all subsequent substantive proceedings in that matter. Arrangements for these subsequent proceedings may be made directly with the Commercial List Office. The continuing judge should be contacted in writing about the nature of the matter to be heard and a list of times which are convenient to all counsel, so that the judge can conveniently schedule the matter or can refer it back to the Commercial List Office for re-assignment. For matters of sufficient complexity or duration, in the event that the original judge is not sitting on the Commercial List at the time or has not then been assigned to a future Commercial List team, a request may be made for the appointment of new continuing judge.

Case Management

35) It is expected that most matters of substance and of an ongoing nature on the Commercial List shall be subject to a form of case management by a Commercial List judge. Paragraph 34) already provides for significant informal case management for each case on the Commercial List. When a matter is transferred to the Commercial List, when the trial of an issue is directed or in any other matter where a party moves for case management and a Commercial List judge so directs, a specific case management judge may be appointed.

36) Where a Commercial List matter is subject to specific case management, a Scheduling Conference (if not already held at the time of transfer or otherwise) shall be held with the case management judge not later than 1 month after the close of pleadings or the date of the order referred in paragraph 35), to determine a plan to process the case in a timely and reasonable fashion and to deal with any matters of a procedural nature which should be addressed at an early stage of the proceedings. The prospects for settlement should also be addressed. The results of a Scheduling Conference will be recorded in a Case Timetable.

37) Counsel will be expected to have conferred among themselves, prior to the Scheduling Conference, for the purpose of preparing a plan to process the case, including a time schedule, for review with the case management judge.

38) Unless otherwise ordered, a Case Conference shall also be held with the case management judge not later than 1 month after the completion of discoveries. The plaintiff or applicant shall have the onus of arranging the Case Conference. The purpose of the Case Conference is to monitor the progress of the matter, to canvass settlement or other disposition of all or as many of the issues as possible, and to provide whatever directions as may be necessary or appropriate with respect to the disposition of the matter.

39) A Case Conference may be held at any other time during the proceeding where the parties consent or where a party moves for the scheduling of a Case Conference and the case management judge so directs.

Alternative Dispute Resolution and Pre-Trials

40) Resort to the techniques of "alternative dispute resolution" (ADR), where appropriate, is recognized and encouraged as an effective aid in the disposition of issues and matters on the Commercial List.

41) It shall be the duty of the case management judge and the obligation of counsel to explore methods to resolve the contested issues between the parties, including the resort to ADR, at the Case Conferences and on whatever other occasions it may be fitting to do so.

42) At any time, particularly on consent of the parties, the case management judge may refer any issue for ADR, as appears appropriate.

43) When a matter, or any issue within a matter, has been referred to ADR, counsel shall report to the case management judge at regular intervals as to the progress of the ADR proceedings. The timing of such reports shall be agreed upon between counsel and the case management judge.

44) The Court may schedule intensive pre-trials for either entire cases or for significant matters within cases. These pre-trials should be booked through the Commercial List Office, with enough time for the matters in issue and the possibility of settlement to be canvassed thoroughly. At least five days before the pre-trial, each party shall deliver to the other parties a pre-trial brief containing:

a. a concise statement of facts including the agreed facts and admissions;
b. where necessary, a concise summary of the issues;
c. any outstanding procedural issues;
d. the current settlement position of each party; and
e. an estimate of the trial time.

A trial management conference may also be held to deal with arrangements for managing the trial or hearing.

Materials for use of the Court

45) It is expected that materials filed for the use of the Court will be filed with the Commercial List Office at least within the time prescribed by the Rules. Early filing is recommended and all materials must be filed by 2:00 p.m. two days before the hearing.

46) The Commercial List Office should be advised of what specific materials from its files are required for the hearing of any particular proceeding. This is particularly important where the matter is on-going or the materials in the court files are voluminous. It is suggested that counsel co-ordinate on a common numbering scheme for the records, transcripts, factums, authorities and other materials intended for use by the Court and that a representative attend at the Commercial List Office before a hearing to ensure that the correct materials are available to the judge.

47) In appropriate cases, to supplement any required formal Record, counsel are requested to consider preparing an informal Compendium of the key materials to be referred to in argument (fair extracts of documents, transcripts, previous orders, authorities, etc.) to assist in focusing the case for the Court: (see Saskatchewan Egg Producers' Marketing Board v. Ontario, [1993] O.J. No. 434.) Relevant portions of the Compendium should be highlighted or marked. Counsel are urged to consult among themselves in the preparation of a joint Compendium, if possible. The Compendium should contain only essential materials. The use of a loose-leaf format is particularly helpful to the Court both for conducting hearings and for writing decisions.

48) The Court invites the use of diagrams, corporate organization charts, list of persons involved, point-form chronologies and other synopses of complex or technical evidence.

49) The prior preparation of draft orders for consideration by the Court at the end of a hearing will greatly expedite the issuance of orders.

50) For trials, the Court encourages the use of sworn witness statements to replace examination in chief, in whole or in part, in appropriate circumstances. All such witness statements must be exchanged with all other parties and counsel well in advance of the hearing and, unless a prior order is made, the witness should be available for cross-examination at the trial. (Also see rule 53.02)

Reasons for Decision

51) If an endorsement, order or decision is hand-written or dictated and not transcribed by the Court, counsel for the plaintiff or moving party shall assist the Court in preparing a typed draft and providing to the court the typed draft for editing by the judge, along with an electronic version of the draft on diskette and a copy of the hand-written version or dictation tape, highlighting any passages which were difficult to read.

Costs

52) The Court will seek to award and fix costs at the end of the hearing of a matter. Counsel should be prepared to deal with costs (including liability, scale and amount) at the conclusion of the hearing of the matter or, if absolutely necessary, by written submissions immediately thereafter.

Users' Committee

53) A Commercial List Users' Committee has been established. It is comprised of members of the judiciary who sit on the Commercial List from time to time, of practitioners who are familiar with the operation of the Commercial List and who are nominated by relevant Bar organizations, and of a representative of Courts Administration from the Commercial List Office. The names of the members of the Users' Committee may be obtained from the Commercial List Office. The Users' Committee meets regularly to consider improvements to the organization and operation of the Commercial List and to make recommendations to the Regional Senior Justice and the Chief Justice in that regard. The Users' Committee welcomes suggestions, compliments and complaints from other practitioners who have had cases on the Commercial List. Communications may be sent to the Commercial List Office, which will direct them to the office of the Regional Senior Justice.

Enquiries

54) The supervising judge of the Commercial List may be contacted about the scheduling of trials, long matters and urgent matters. In such cases, it is expected that counsel shall give details of the matter, the urgency, if any, expected length and mutually convenient dates. A Request Form and Case Timetable may be used for this purpose.

Commercial List Forms

55) Current versions of the Request Forms and Case Timetable forms may be obtained from the Commercial List Office.

Effective Date

56) This practice direction is effective from April 1, 2002 and replaces the previous Practice Direction Concerning the Commercial List, dated August 8, 1995.