Inventory of Reforms

Rules 5.07-5.09 govern applications in court, a new type of proceeding intended as a speedy, flexible alternative to a trial. The court expects that applications in court under R.5 will proceed to hearing considerably faster than actions under R.4, or even actions under $100,000 in R.57 and R.58. Another feature in favour of applications in court is that there is no presumptive time limit for discovery, as there is under R.57.10(3).

Unlike the previous R.9.02, substantial disputes of fact are permitted, if they can be resolved in a summary way.

An application in court is commenced using Form 5.07 and is accompanied by a motion for directions that must be heard no more than 25 days after filing. (This will necessitate prompt service on the responding parties.) Motions for directions are heard in chambers, by appointment, or by conference, as the judge directs (R.5.09(1)).

The motion for directions is accompanied by an affidavit, which may come from counsel, containing the details necessary for the court to fix a hearing date. The applicant's affidavits need not accompany the notice, but the applicant must set out the names of witnesses who will provide affidavits and describe the subjects about which each witness could give evidence. Judges have broad case management powers on the motion for directions (R.5.09(2)), including ordering disclosure, permitting or limiting discovery, ordering cross-examination out of court, limiting the subjects of or time for cross-examination at the hearing, setting dates for filing affidavits and briefs, setting the hearing date, and giving any other necessary directions. The Rule does not refer to settlement conferences, and the language of 5.09(2)(n) speaks only of organizing the application, but there is no obvious reason why a settlement conference could not be ordered under R.5.

As with an application in chambers, an application in court is defended by filing a notice of contest within 5 days (R.5.08). The notice requires fairly detailed knowledge of the case including the status of disclosure, whether discovery is requested, a list of the respondent's witnesses and all other possible witnesses known to the respondent, along with the subjects of each witness's evidence. As with the application, R.5.08 does not require that the respondent actually file affidavits at this point.