Frequently Asked Questions
		Rule 68
1.	Q.	Can a Plaintiff abandon an amount in excess of $100,000 to bring the action within the scope of this Rule?
	A.	A plaintiff has control over what claims he or she advances in an action. In order to bring his or her claim within the Rule without requiring the consent of the other parties, a party can choose to limit his or her claim to $100,000. However, nothing in Rule 68 prevents a court from awarding damages to a plaintiff in an expedited action for an amount in excess of $100,000 (see Rule 68(4)).
2.	Q.	How is the party’s consent indicated under rule 68(3)? By possible form, or letter to the registry, or an endorsement?
	A.	It is expected that parties who agree that an action can be commenced under Rule 68 where the claim is in excess of $100,000 will enter into an agreement in the form they deem appropriate. The writ and statement of claim will then be endorsed with a Rule 68 endorsement. It will be up to the other parties to object if an action is not properly filed under Rule 68.
		If an agreement is reached that Rule 68 should apply after the action has been commenced, a consent order should be filed to indicate that the action is now subject to Rule 68.
3.	Q.	The Notice to the Profession dated March 30, 2005 states that a party may not bring on a contested application without first attending a case management conference. Therefore, can you bring an uncontested application without first attending a case management conference (CMC)?
	A.	This statement in the Notice to the Profession is intended to refer to the fact that consent applications (i.e. desk orders or applications spoken to on a consent basis) may be brought before the court without the need to attend a case management conference (see Rule 68(11)(e)). Rule 68(10) provides that a party must not deliver a notice of motion or affidavit in support of an interlocutory application unless a case management or trial management conference has been conducted.
4.	Q.	Will every Rule 68 action have a case management judge?
	A.	No. However, a judge or master at a case management conference may seize him or herself of any and all interlocutory applications where it is appropriate to do so.
5.	Q.	If there has been a CMC, can either party then bring a contested application from that point on in the litigation, or must there be a CMC before each contested application?
	A.	Once a party has attended a CMC, the requirement under 68(10) has been satisfied and there is no requirement to attend a further CMC in order to bring on another contested application in chambers. However, a party can choose to schedule additional CMCs at any time to deal with an interlocutory matter listed in Rule 68(41).
6.	Q.	A party commencing an action can decide to start it under Rule 68 by adding “Subject to Rule 68” under the names of the parties. But how does it “become” an expedited action if it does not start out that way?
	A.	An action not commenced under Rule 68 can become subject to Rule 68 by the consent of the parties (see rule 68(3)). In that circumstance, the parties should file a consent order to indicate that the action is now subject to Rule 68. All subsequent pleadings must include the words “Subject to Rule 68” immediately below the listed parties.
7.	Q.	Can one party “decide” an action is to follow the expedited process, and if so, does the other party have to consent or is expedited litigation available “as of right”?
	A.	Any action which meets the requirement of Rule 68(2) is subject to Rule 68 and the plaintiff must file the action accordingly. In this circumstance, the consent of the defendant is not required. If the defendant is of the view that the action cannot be appropriately dealt with under Rule 68, he or she may apply for an order that Rule 68 ceases to apply (see rule 68(7)). In cases where the claim advanced by the plaintiff exceeds $100,000, the plaintiff must have the consent of the defendant to make the claim subject to Rule 68. The defendant cannot make any claim (regardless of value) subject to Rule 68 without of the consent of the plaintiff. Whether there is some scope for the defendant to seek an order from the court making a claim subject to Rule 68 is a matter that will have to be determined through judicial consideration.
8.	Q.	How is close of pleadings as referred to in Rule 68(16) defined? Is it after the receipt of all Statements of Defence, or upon expiry of the time within which a Statement of Defence should have been delivered? Or is it receipt of a Statement of Defence plus 7 days for receipt of a Reply which is a pleading available “as of right”?
	A.	The close of pleadings is defined in Rule 23(5) which states as follows:
		“Where no reply to a statement of defence, to a statement of defence to a counterclaim, or to a subsequent pleading is delivered within the time allowed, the pleadings are closed and material statements of fact in the pleading last delivered shall be deemed to have been denied and put in issue.”
9.	Q.	What form is to be used for the List of Documents? Should Form 93 be modified to reflect the changes required by Rule 68? What about grounds for privilege? What about production of the privileged documents?
	A.	Rule 26(1) which mandates the use of Form 93 does not apply to Rule 68 actions. However, it would be permissible to use Form 93 modified as counsel deem appropriate. With respect to the impact of Rule 68 on the requirement to list and produce privileged documents, this is a question that will have to be answered through judicial interpretation of the rule.
10.	Q.	What form is to be used to demand discovery of documents? Should a modified Form 92 be created?
	A.	There is no prescribed form for this demand. The demand can be made in any form, so long as it is in writing and identifies the documents or class of documents being sought.
11.	Q.	When parties consent to an examination for discovery pursuant to Rule 68(27)how is this consent to be indicated?
	A.	There is no prescribed form for the consent to allow for a discovery and it is expected that counsel will develop their own practice to document this consent as necessary.
12.	Q.	Can a revised Form 141, Notice of Witnesses, be prepared to address witnesses you do not know about at the time it must be delivered under Rule 68(31)?
	A.	Yes. Given that a witness cannot be called at trial unless the witness’ name and a summary of his or her evidence has been disclosed in accordance with rule 68(41), it is expected that parties will prepare a supplemental Form 141 to deal with those witnesses they were not aware of at the time Form 141 is first required to be filed.
13.	Q.	How long can a Trial Management Conference (TMC) be set for, or is it similar to a Pre-trial Conference (PTC) which is set for half an hour?
	A.	This has yet to be finalized but it is anticipated that at least one hour will be required for these conferences
14.	Q.	Rule 68(54)(h) requires that the trial brief include a list of the documents the party intends to introduce at trial. Is this your List of Documents, or can it be a reduced list from your List of Documents?
	A.	If the party intends to rely on all the documents contained in his or her list of documents, then it would be permissible to use this list of documents. If the party has decided that fewer documents than disclosed will be relied upon at trial, only those documents should be listed.
15.	Q.	Can the time estimates required by rules 68(54)(e) [direct evidence], 68(54)(g) [cross-examination] and 68(54)(j) [opening statement and final submissions] all be included in the same document which lists the witnesses?
	A.	This would be permissible and good practice to do so.
16.	Q.	Rule 68(54)(k) requires that the terms of the order that the party will seek at trial be included in the trial brief. Should a draft order be included?
	A.	It would be good practice to include a draft order.
17.	Q.	Is Form 142 also used to set down a TMC, or just a regular Requisition?
	A.	See the August 2, 2005 Practice Direction which requires counsel to provide notice of any orders they wish to seek at the TMC by using a requisition similar in form to Form 142. With respect to scheduling TMCs, that direction states as follows:
		“Pursuant to rule 68(51), a trial management conference (“TMC”) must be held within 15 to 30 days before the start of the trial. The onus will be on the parties to secure a TMC date with the trial coordinator. Where possible, trial dates and TMC dates will be set at the case management conference (“CMC”). However, if such dates are not set at a CMC or a CMC is not held, the parties must contact the trial coordinator to obtain a TMC date.”