Rule 17 – Trial

Computation

Failure to Attend

17.01 (1) If an action is called for trial and all the parties fail to attend, the trial judge may strike the action off the trial list.  O. Reg. 258/98, r. 17.01 (1).

(2) If an action is called for trial and a party fails to attend, the trial judge may,

(a) proceed with the trial in the party’s absence;

(b) if the plaintiff attends and the defendant fails to do so, strike out the defence and dismiss the defendant’s claim, if any, and allow the plaintiff to prove the plaintiff’s claim, subject to subrule (3);

(c) if the defendant attends and the plaintiff fails to do so, dismiss the action and allow the defendant to prove the defendant’s claim, if any; or

(d) make such other order as is just.  O. Reg. 258/98, r. 17.01 (2).

(2.1) In the case described in clause (2) (b) or (c), the person with the claim is not required to prove liability against the party who has failed to attend but is required to prove the amount of the claim.  O. Reg. 78/06, s. 33 (1).

(3) In the case described in clause (2) (b), if an issue as to the proper place of trial under subrule 6.01 (1) is raised in the defence, the trial judge shall consider it and make a finding.  O. Reg. 258/98, r. 17.01 (3).

Setting Aside or Variation of Judgment

(4) The court may set aside or vary, on such terms as are just, a judgment obtained against a party who failed to attend at the trial.  O. Reg. 258/98, r. 17.01 (4).

Conditions to Making of Order under Subrule (4)

(5) The court may make an order under subrule (4) only if,

(a) the party who failed to attend makes a motion for the order within 30 days after becoming aware of the judgment; or

(b) the party who failed to attend makes a motion for an extension of the 30-day period mentioned in clause (a) and the court is satisfied that there are special circumstances that justify the extension.  O. Reg. 78/06, s. 33 (2).

Adjournment

17.02 (1) The court may postpone or adjourn a trial on such terms as are just, including the payment by one party to another of an amount as compensation for inconvenience and expense.  O. Reg. 258/98, r. 17.02.

(2) If the trial of an action has been adjourned two or more times, any further adjournment may be made only on motion with notice to all the parties who were served with the notice of trial, unless the court orders otherwise.  O. Reg. 78/06, s. 34.

Inspection

17.03 The trial judge may, in the presence of the parties or their representatives, inspect any real or personal property concerning which a question arises in the action.  O. Reg. 258/98, r. 17.03.

Motion for New Trial

17.04 (1) A party may make a motion for a new trial within 30 days after a final order is made.  O. Reg. 78/06, s. 35.

Transcript

(2) In addition to serving and filing the notice of motion and supporting affidavit (Form 15A) required under rule 15.01, the moving party shall serve and file proof that a request has been made for a transcript of,

(a) the reasons for judgment; and

(b) any other portion of the proceeding that is relevant.  O. Reg. 393/09, s. 16 (1).

Service and Filing of Transcript

(3) If available, a copy of the transcript shall, at least three days before the hearing date,

(a) be served on all parties who were served with the original notice of trial; and

(b) be filed, with proof of service.  O. Reg. 78/06, s. 35; O. Reg. 393/09, s. 16 (2).

Powers of  Court on Motion

(4) On the hearing of the motion, the court may,

(a) if the party demonstrates that a condition referred to in subrule (5) is satisfied,

(i) grant a new trial, or

(ii) pronounce the judgment that ought to have been given at trial and order judgment accordingly; or

(b) dismiss the motion.  O. Reg. 78/06, s. 35.

Conditions

(5) The conditions referred to in clause (4) (a) are:

1. There was a purely arithmetical error in the determination of the amount of damages awarded.

2. There is relevant evidence that was not available to the party at the time of the original trial and could not reasonably have been expected to be available at that time.  O. Reg. 78/06, s. 35.