This article relates to summonsing a witness to a civil trial in Ontario, in particular before the Ontario Superior Court of Justice pursuant to rule 53.04 of the Rules of Civil Procedure.
In Canada, the term subpoena is used in criminal proceedings and to subpoena a witness involves many of the steps below, but the process is different and beyond the scope of this article.
For information on summons in contexts other than the Ontario Superior Court of Justice, please see our article Summons or Subpoena?
Steps to Summonsing a Witness
- Prepare the summons. Click here to purchase a template summons. It is useful to leave the name, address, documents required and $ amounts blank as the summons can then be used for multiple witnesses.
- Issue one blank summons to witness. The fee to issue a summons is $31 payable to the Minister of Finance. A summons can be issued at any Courthouse, even if the trial is at another Courthouse.
- Calculate the attendance money (attendance + travel + overnight accommodation and meals). For most witnesses, this will be one day, which is $50 for attendance. Travel for witnesses who live in the city or town where the trial is to be held is $3. Accommodation will be $0 for local witnesses. The most common amount for attendance money is therefore $50 + $3 + $0 = $53. For witnesses who are out of town, see Tariff A, Part II under the Rules of Civil Procedure (scroll up from the bottom of the page). For witnesses 300 km or less away, travel is $0.24 per km each direction. For witnesses more than 300 km away, travel is $0.24 per km to and from the airport plus airfare. Overnight accommodation and meals must be paid for if the witness needs to stay overnight.
- Serve the summons personally, together with the attendance money.
- Prepare an affidavit of service that confirms personal service of both the summons and attendance money.
Enforcing a Summons
Although rare and usually easily rectified, if a witness is material and does not attend trial in compliance with a summons, a warrant for their arrest may be issued and they can be apprehended and detained until they testify. Please see rule 53.04(7) and (8) of the Rules of Civil Procedure.
Interprovincial Summonses (bringing a witness to Ontario)
For witnesses in another Province or Territory except Quebec that you wish to bring to Ontario for a trial or hearing, consider whether or not that Province or Territory has legislation similar to Ontario’s Interprovincial Summonses Act. Most Provinces do. The good news is that witnesses brought to Ontario are granted the witness immunity necessary to enforce the summons in most other jurisdictions (see section 6 of Ontario’s Interprovincial Summonses Act). Enforcement of the summons would be in the jurisdiction where the summons is to be served.
Please note the fees are different for this summons than for a witness residing in Ontario. The fees are in Schedule 1 of the Ontario’s Interprovincial Summonses Act and include at minimum airfare, 3 days at a hotel, 3 days worth of meals and 3 days allowance at $20 per day.
In addition to the Summons to a Witness Outside Ontario, it is necessary to get in front of a Judge to have a Judicial Certificate issued (signed and sealed) by a Judge. The process for having a Judicial Certificate issued is unwritten. A more conservative Judge may want to see a motion record or application record. However, section 5 of Ontario’s Interprovincial Summonses Act indicates a Justice can hear from and examine a party or a party’s counsel and if satisfied it is necessary to have the witness attend, the Justice shall sign the certificate. The Judicial Certificate is attached to the Summons to a Witness Outside Ontario.
If the case is worth the time and effort, it may be wise to bring an application in the other Province or Territory to formally receive and adopt the interprovincial summons and have it made into a Court order. Such an application could in theory be ex parte as a Justice of the Ontario Superior Court of Justice has already been satisfied of the importance of the witness or such an application could be on notice to make the interprovincial summons and corresponding order bulletproof.
For witnesses in Quebec that you wish to bring to Ontario, it is necessary to consult with a Quebec lawyer due to a lack of reciprocal witness immunities.
Interprovincial Summoneses (sending a witness outside of Ontario)
For witnesses in Ontario that you wish to summons to another Province or Territory other than Quebec, Ontario’s Interprovincial Summonses Act applies and requires the Province or Territory to which the witness is to be sent to grant witness immunities. Most Provinces and Territories, other than Quebec, grant such immunities. The Ontario Courts must receive and adopt as a Court order valid summonses from other Provinces and Territories and the Ontario Courts will enforce such summons through contempt powers, including the possibility of arrest.
For witnesses in Ontario that you wish to send to Quebec, it is extremely challenging as Quebec law does not grant the witness immunity necessary to comply with Ontario’s Interprovincial Summonses Act. There is evolving case law suggesting the inherent jurisdiction of the Superior Court may enable the summonsing of an Ontario witness to Quebec. Mick Hassell appeared in Bingham Group v. Campbell in which Justice Dunphy (who formerly practised law in both Ontario and Quebec) hinted at the inherent jurisdiction argument.
An interprovincial summons and judicial certificate can be formally received and adopted as an Order of the Ontario Superior Court of Justice in an application, possibly without notice or to be certain all goes well, on notice, especially for a crucial witnesses.
International Summonses (bringing a witness to Ontario and sending a witness outside of Ontario)
An international summons for service outside of Canada may require coordination with foreign counsel and the cooperation of the Courts of the foreign jurisdiction where the summons is to be served to recognise and enforce the summons.
For witnesses in Ontario that are to be summonsed to a foreign jurisdiction, the Ontario Courts are likely to want to ensure that the country to which the Ontario resident is to be sent is a democratic one with a functioning judiciary and that all requirements of Ontario’s Interprovincial Summonses Act are addressed, including with respect to witness immunities. Sending a person to another country requires a higher test to be met and must be done with a full record in the course of a motion or application by Ontario legal counsel.
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