Updated November 2016
This How-To Brief outlines the steps to take to prepare, serve and file a trial record so as to set an action down for trial.
Note: Subrules 76.11(2)–(4) of the Rules of Civil Procedure govern the preparation, contents, service and filing of a trial record in actions under simplified procedure.
1Gather what you will need
- The client's file, including all pleadings and court orders made in respect of the trial, a copy of any jury notice, demand or orders for particulars and the particulars delivered in response
- Rules of Civil Procedure (See the link to the Rules of Civil Procedure in the Statutes and Rules section of this How-To Brief.)
- Applicable Practice Directions and Policies (See the link to the Superior Court of Justice Practice Directions and Policies in the Resources section of this How-To Brief.)
- Rules of Civil Procedure Forms:
- Form 4A, General Heading of Documents – Actions
- Form 4C, Backsheet
- Form 16B, Affidavit of Service
- (See the link to the Rules of Civil Procedure Forms in the Statutes and Rules section of this How-To Brief.)
- Courts of Justice Act (See the link to the Courts of Justice Act in the Statutes and Rules section of this How-To Brief.)
- Firm precedents, if any, and library resources for precedent material
2Obtain copies of all relevant documents
- After the close of pleadings, any party to a defended action (or counterclaim or crossclaim) who is not in default under the Rules of Civil Procedure or a court order and who is ready for trial may set the action down for trial (together with any counterclaim or crossclaim) by serving a trial record on every party to the action (or to a counterclaim or crossclaim in the action and on any third or subsequent party) and filing that record with proof of service (rr. 48.01 and 48.02(1)). (See rr. 48.02(2)–(5) regarding undefended actions, third party actions and the trial of an action in a place other than where the action was commenced.)
- Assemble the trial record by gathering together each of the following documents in the following order (r. 48.03):
- a copy of any jury notice
- all pleadings related to the action, including the statement of claim, any statements of defence, third party claims, counterclaims and crossclaims—include any amended pleadings, but do not include notices of action or notices of intent to defend
- any demand or order for particulars
- the particulars delivered in response
- any notice of amounts or particulars of special damages delivered under r. 25.06(9)(b)
- all orders respecting the trial
- a certificate signed by the lawyer setting down the action, stating the information required by r. 48.03(1)(h) (see Step 3 below)
3Prepare a solicitor's certificate
- The certificate should state as follows as per r. 48.03(1)(h):
- that the trial record contains the documents required by r. 48.03(l)(a)–(g)
- that the time for delivery of pleadings has expired
- where applicable, that any defendant who has failed to deliver a statement of defence has been noted in default
- where applicable, that judgment has been obtained or the action has been discontinued or dismissed against a defendant
4Prepare a table of contents
- Prepare a table of contents for the trial record. Describe each document by name and date, and list the corresponding page number for each document.
- Ensure each page of the trial record is numbered. Override any page numbers already contained in the documents and re-number the pages sequentially by printing or stamping the new page number on each page.
5Assemble the trial record
- Prepare a cover page for the trial record that clearly indicates the name of the document, court file number, court name, your name and address, and the names and addresses of opposing counsel.
- Staple or bind together the cover page, followed by the table of contents (as per Step 4 above), the documents in the order listed (as per Step 2) and finally the backsheet.
- The backsheet must be in Form 4C and prepared in accordance with r. 4.02(3). The backsheet must also be on light blue cover stock (r. 4.07(1)).
6Serve and file the trial record
- Prepare sufficient copies of the trial record to serve one on every party to the action, including the Defendants to any counterclaims, crossclaims or third (or subsequent) party claims (r. 48.02).
- Serve one copy on opposing counsel. Obtain proof of service in the form of an affidavit of service in Forms 4A, 4C and 16B (r. 16.09(1)).
- File a copy of the trial record, along with proof of service, in the court where the proceeding was commenced (r. 48.02). Pay the applicable filing fee.
- Retain a copy of the trial record in the client's file.
7Prepare a supplemental trial record where necessary
- In accordance with r. 48.03(2), if any of the following documents become available after the filing of the trial record, prepare a supplemental trial record to be placed with the record, before the trial, in the same form as the trial record and containing
- any notice of amounts and particulars of special damages
- any order respecting the trial
- any memorandum signed by counsel, or any order made by the court, following a pre-trial conference
- in an undefended action, a copy of any affidavit to be used as evidence at trial
Trial record: A booklet containing the court documents related to an action for use by the trial judge. See r. 48.03 of the Rules of Civil Procedure.
- Superior Court of Justice Practice Directions and Policies
- Jacqueline L. King, "The Law Clerk's Preparation for Trial" in Fourth Annual Civil Litigation for Law Clerks (Toronto: Continuing Legal Education, Law Society of Upper Canada, 2004). Order Review this publication at your local law library (see AdvoCAT Great Library Catalogue) or order it through the AccessCLE website. The website includes a search function to find other relevant articles from the Law Society of Upper Canada's Continuing Professional Development programs.
Statutes and Rules