Expert Affidavits
 76.09.1 (1) A party who intends to call expert evidence at the trial of the action shall comply with rule 53.03. O. Reg. 344/19, s. 6; O. Reg. 18/22, s. 11 (1). (2) An expert’s report served under rule 53.03 shall be appended to an affidavit of the expert in which the expert adopts the report for the purpose of giving it as evidence in the action. O. Reg. 344/19, s. 6; O. Reg. 18/22, s. 11 (2). Pre-Trial Conference Notice 76.10 (1) A pre-trial conference shall be scheduled in accordance with rule 50.02. O. Reg. 344/19, s. 7 (1). Parties’ Proposed Trial Management Plan (2) At least 30 days before the pre-trial conference, the parties shall agree to a proposed trial management plan that contains the following: 1. A list of every witness, including every expert witness, whose evidence a party intends to adduce at trial. 2. A division of time between the parties, the total of which shall not exceed five days, that sets out the allotted times for each party for, i. opening statement, ii. the presentation of evidence in chief by affidavit and under rule 31.11, iii. cross-examination of deponents, iv. re-examination of any deponents who are cross-examined, and v. oral argument. O. Reg. 344/19, s. 7 (2). (3) Revoked: O. Reg. 438/08, s. 58 (1). Documents (4) Despite rule 50.04 (pre-trial conference brief to be filed), at least five days before the pre-trial conference, each party shall, (a) file, (0.i) a copy of the parties’ proposed trial management plan, (i) a copy of the party’s affidavit of documents and copies of the documents relied on for the party’s claim or defence, (ii) a copy of any expert affidavit, other than a supplementary expert affidavit, and (iii) any other material necessary for the conference; and (b) deliver, (i) a statement, not exceeding three pages, setting out the issues and the party’s position with respect to them, and (ii) a trial management checklist (Form 76D). O. Reg. 284/01, s. 25; O. Reg. 438/08, s. 58 (2); O. Reg. 344/19, s. 7 (3-5); O. Reg. 18/22, s. 12 (1). Trial Planning (5) The pre-trial conference judge or associate judge shall, (a) fix the number of witnesses, other than expert witnesses, whose evidence each party may adduce at trial; (b) fix dates for the delivery of any witness affidavits, including any outstanding expert affidavits; (c)  Revoked: O. Reg. 18/22, s. 12 (2). (d) approve the parties’ proposed trial management plan, with any changes to the order or time of presentation, or any other changes, that the pre-trial conference judge or associate judge may specify, subject to the requirement that the duration of the trial not exceed five days; and (e) make such other order as the judge or associate judge considers necessary or advisable with respect to the conduct of the proceeding. O. Reg. 344/19, s. 7 (6); O. Reg. 383/21, s. 14, 15; O. Reg. 18/22, s. 12 (2). (6), (7) Revoked: O. Reg. 344/19, s. 7 (7). Trial Trial List 76.11 (1) This subrule, as it read on March 30, 2022, continues to apply to an action that was set down for trial before March 31, 2022. O. Reg. 18/22, s. 13. Trial Record (2) At least 10 days before the date fixed for trial, the party who set the action down for trial shall serve a trial record on every party to the action and any counterclaim, crossclaim or third party claim, and file the record with proof of service. O. Reg. 284/01, s. 25. (3) Revoked: O. Reg. 344/19, s. 8 (1). (4) The trial record shall contain, in consecutively numbered pages arranged in the following order, (a) a table of contents describing each document, including each exhibit, by its nature and date and, in the case of an exhibit, by exhibit number or letter; (b) a copy of the pleadings, including those relating to any counterclaim, crossclaim or third party claim; (c) a copy of any demand or order for particulars of a pleading and the particulars delivered in response; (d) a copy of any order respecting the trial, including a copy of the trial management plan approved by the pre-trial conference judge or associate judge; (e) a copy of all the affidavits, including any expert affidavits, served by all the parties for use at trial; and (f) a certificate stating that the trial record contains the documents described in clauses (a) to (e) signed by, (i) the lawyer of the party filing the trial record, or (ii) if the party filing the trial record is acting in person, the party. O. Reg. 284/01, s. 25; O. Reg. 575/07, s. 1; O. Reg. 344/19, s. 8 (2, 3); O. Reg. 383/21, s. 15. Summary Trial Procedure 76.12 (1) A trial of an action under this Rule shall proceed as follows, subject to the trial management plan approved under clause 76.10 (5) (d): 1. Before the presentation of evidence, each party may make an opening statement. 2. The plaintiff may adduce evidence, including any expert evidence, by affidavit and under rule 31.11. 3. A party who is adverse in interest may cross-examine the deponent of any affidavit served by the plaintiff. 4. The plaintiff may conduct a re-examination of any deponent who is cross-examined under this subrule. 5. When any cross-examinations and re-examinations of the plaintiff’s deponents are concluded, the defendant may adduce evidence, including any expert evidence, by affidavit and under rule 31.11. 6. A
party who is adverse in interest may cross-examine the deponent of any affidavit served by a defendant. 7. A defendant may conduct a re-examination of any deponent who is cross-examined under this subrule. 8. When any cross-examinations and re-examinations of the defendant’s deponents are concluded, the plaintiff may, with leave of the trial judge, adduce any proper reply evidence. 9. After the presentation of evidence, each party may make oral argument. O. Reg. 344/19, s. 9 (1). (2) The trial judge may vary a time set out in the approved trial management plan, subject to the requirement that the duration of the trial not exceed five days. O. Reg. 344/19, s. 9 (1). (3) A party who intends to examine or cross-examine the deponent of an affidavit at the trial shall, at least 10 days before the date fixed for trial, give notice of that intention to the party who filed the affidavit, who shall arrange for the deponent’s attendance at the trial.  O. Reg. 284/01, s. 25; O. Reg. 438/08, s. 59 (2); O. Reg. 344/19, s. 9 (2). Judgment after Trial (4) The judge shall grant judgment after the conclusion of the trial. O. Reg. 344/19, s. 9 (3). Limits on Costs and Disbursements Awards Limits 76.12.1 (1) Except as provided for under rule 76.13 or an Act, no party to an action under this Rule may recover costs exceeding $50,000 or disbursements exceeding $25,000, exclusive of harmonized sales tax (HST). O. Reg. 344/19, s. 10. Transition (2) Subrule (1) does not apply in the case of an action that was commenced before January 1, 2020. O. Reg. 344/19, s. 10. Costs Consequences Opting In 76.13 (1) Regardless of the outcome of the action, if this Rule applies as the result of amendment of the pleadings under subrule 76.02 (7), the party whose pleadings are amended shall pay, on a substantial indemnity basis, the costs incurred by the opposing party up to the date of the amendment that would not have been incurred had the claim originally complied with subrule 76.02 (1), (2) or (2.1), unless the court orders otherwise.  O. Reg. 284/01, s. 25; O. Reg. 132/04, s. 19 (1). Plaintiff Denied Costs (2) Subrules (3) to (10) apply to a plaintiff who obtains a judgment that satisfies the following conditions: 1. The judgment awards exclusively one or more of the following: i. Money. ii. Real property. iii. Personal property. 2. The total of the following amounts is $200,000 or less, exclusive of interest and costs: i. The amount of money awarded, if any. ii. The fair market value of any real property and of any personal property awarded, as at the date the action is commenced.  O. Reg. 284/01, s. 25; O. Reg. 438/08, s. 60 (1); O. Reg. 344/19, s. 11 (1). (3) The plaintiff shall not recover any costs unless, (a) the action was proceeding under this Rule at the commencement of the trial; or (b) the court is satisfied that it was reasonable for the plaintiff, (i) to have commenced and continued the action under the ordinary procedure, or (ii) to have allowed the action to be continued under the ordinary procedure by not abandoning claims or parts of claims that do not comply with subrule 76.02 (1), (2) or (2.1).  O. Reg. 206/02, s. 20; O. Reg. 132/04, s. 19 (2); O. Reg. 438/08, s. 60 (2). (4) Subrule (3) applies despite subrule 49.10 (1) (plaintiff’s offer to settle).  O. Reg. 284/01, s. 25. (5) Subrule (3) does not apply if this Rule was unavailable because of the counterclaim, crossclaim or third party claim of another party.  O. Reg. 284/01, s. 25. Plaintiff may be Ordered to Pay Defendant’s Costs (6) The plaintiff may, in the trial judge’s discretion, be ordered to pay all or part of the defendant’s costs, including substantial indemnity costs, in addition to any costs the plaintiff is required to pay under subrule 49.10 (2) (defendant’s offer to settle).  O. Reg. 284/01, s. 25. Defendant Objecting to Simplified Procedure (7) In an action that includes a claim for real or personal property, if the defendant objected to proceeding under this Rule on the ground that the property’s fair market value exceeded $200,000 at the date the action was commenced and the court finds the value did not exceed that amount at that date, the defendant shall pay, on a substantial indemnity basis, the costs incurred by the plaintiff that would not have been incurred had the claim originally complied with subrule 76.02 (1), (2) or (2.1), unless the court orders otherwise.  O. Reg. 284/01, s. 25; O. Reg. 132/04, s. 19 (3); O. Reg. 438/08, s. 60 (3); O. Reg. 344/19, s. 11 (2). Burden of Proof (8) The burden of proving that the fair market value of the real or personal property at the date of commencement of the action was $200,000 or less is on the plaintiff.  O. Reg. 284/01, s. 25; O. Reg. 438/08, s. 60 (4); O. Reg. 344/19, s. 11 (3). Counterclaims, Crossclaims and Third Party Claims (9) Subrules (1) to (8) apply, with necessary modifications, to counterclaims, crossclaims and third party claims.  O. Reg. 284/01, s. 25. Transition (10) In the case of an action that was commenced on or after January 1, 2002 and before January 1, 2010, subrules (2), (7) and (8) apply as if “$200,000” read “$50,000”. O. Reg. 344/19, s. 11 (4). (11) In the case of an action that was commenced on or after January 1, 2010 and before January 1, 2020, subrules (2), (7) and (8) apply as if “$200,000” read “$100,000”. O. Reg. 344/19, s. 11 (4).