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Family Law Rules – Rule 41: Case Management in the Superior Court of Justice (other than the Family Court of the Superior Court of Justice)

Angela Princewill

November 21, 2015

RULE 41:  CASE MANAGEMENT IN THE SUPERIOR COURT OF JUSTICE (OTHER THAN THE FAMILY COURT OF THE SUPERIOR COURT OF JUSTICE)

CASE MANAGEMENT

41. (1) This rule applies only to cases in the Superior Court of Justice, other than cases in the Family Court of the Superior Court of Justice, started on or after July 1, 2004.  O. Reg. 89/04, s. 16.

EXCLUDED CASES

(2) This rule does not apply to,

(a) enforcements; or

(b) cases under rule 32.1, 37 or 37.1. O. Reg. 89/04, s. 16; O. Reg. 388/12, s. 12.

PARTIES MAY NOT LENGTHEN TIMES

(3) A time set out in this rule may be lengthened only by order of the court and not by the parties’ consent under subrule 3 (6).  O. Reg. 89/04, s. 16.

CLERK’S ROLE

(4) The clerk shall not set a court date when the application is filed, and the case shall come before the court when a case conference or a motion is scheduled, whichever comes first, and the clerk shall schedule a case conference on any party’s request.  O. Reg. 89/04, s. 16.

NOTICE OF APPROACHING DISMISSAL AFTER 365 DAYS

(5) The clerk shall serve a notice of approaching dismissal (Form 39) for a case on the parties by mail, fax or email if the case has not been settled, withdrawn or scheduled or adjourned for trial before the 365th day after the date the case was started, and that time has not been lengthened by an order under subrule (3).  O. Reg. 439/07, s. 5 (1); O. Reg. 140/15, s. 4.

EXCEPTION

(5.1) Despite subrule (5), if a case conference or settlement conference is arranged before the 365th day after the date the case was started for a date on or later than the 365th day, the clerk shall not serve a notice of approaching dismissal except as set out in subrule (5.2).  O. Reg. 439/07, s. 5 (1).

NOTICE SENT IF CONFERENCE DOES NOT TAKE PLACE

(5.2) If a case conference or settlement conference is arranged for a date on or later than the 365th day after the date the case was started, but the hearing does not take place on that date and is not adjourned by a judge, the clerk shall serve the notice of approaching dismissal on the parties by mail, fax or email.  O. Reg. 439/07, s. 5 (1); O. Reg. 140/15, s. 4.

DISMISSAL OF CASE

(6) A case for which a notice of approaching dismissal has been served shall be dismissed without further notice, unless one of the parties, within 60 days after the notice is served,

(a) obtains an order under subrule (3) to lengthen that time;

(b) 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;

(c) serves on all parties and files a notice of withdrawal (Form 12) that discontinues all outstanding claims in the case;

(d) schedules or adjourns the case for trial; or

(e) arranges a case conference or settlement conference for the first available date.  O. Reg. 439/07, s. 5 (1).

SAME

(6.1) If a case conference or settlement conference is arranged for a date as described in clause (6) (e), but the hearing does not take place on that date and is not adjourned by a judge, the case shall be dismissed without further notice.  O. Reg. 439/07, s. 5 (1).

DISMISSAL AFTER NOTICE

(6.2) The clerk shall dismiss a case under subrule (6) or (6.1) by preparing and signing an order dismissing the case, with no costs payable by any party.  O. Reg. 439/07, s. 5 (1).

SERVICE OF DISMISSAL ORDER

(7) The clerk shall serve the order on each party by mail, fax or email.  O. Reg. 89/04, s. 16; O. Reg. 140/15, s. 4.

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 email and file proof of service of the order.  O. Reg. 89/04, s. 16; O. Reg. 140/15, s. 4.

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. 76/06, s. 13.

(10) Revoked: O. Reg. 322/13, s. 22.

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