In Canada, the term summons is commonly used for civil, family, tribunal and arbitration proceedings. The term subpoena is commonly used for criminal proceedings.
To compel a witness to testify at a trial or hearing, a summons or subpoena is used. For the party calling the witness, it is necessary to:
- Draft the summons or subpoena on the right form,
- Have the summons or subpoena issued (signed and/or sealed) by the Court or Tribunal,
- Calculate the attendance money (attendance + travel + maybe overnight accommodation and meals),
- Personally serve (hand-deliver, typically by process server) the issued summons/subpoena together with attendance money (attendance and travel). Some rules provide a deadline for serving a witness and the applicable rules governing the proceeding should be consulted for any deadline, and
- Prove service of a summons/subpoena by affidavit of service.
Civil Superior Court – for civil proceedings before the Ontario Superior Court of Justice, please take a look at our article How to Summons a Witness which discusses rule 53.04 of the Rules of Civil Procedure and the calculation of attendance money. At the time of publication (October 2022) attendance money for a person in the same city as the trial was $53 (more if out of city).
Civil Small Claims Court – for civil proceedings before the Small Claims Court, see rule 18.03 of the Small Claims Court Rules as well as Form 18A. The calculation of attendance money is based upon the Administration of Justice Act and section 3 of Ontario Regulation 332/16 under the Act. The calculation of travel is based upon R.R.O. 1990, Regulation 11 under the Act. At the time of publication (October 2022) attendance money for a person in the same city as the trial was $10 for most witnesses, $25 for professional witnesses such as a lawyer or doctor and 30.5 cents / km travle in northern Ontario or 30 cents / km travel in southern Ontario. Assuming 10 km to and from Court, attendance money would be $16.1 for most and $26.1 for a professional (using northern Ontario travel rates).
Family Court – for family matters, please see rule 23(3) of the Family Law Rules and Form 23. The calculation of attendance money is set out at rule 23(4). Act. At the time of publication (October 2022) attendance money for a person in the same city as the trial was $55 (more if out of city).
Tribunals – many Tribunals have their own set of rules and forms about summons. For example, the Human Rights Tribunal of Ontario has rule 3.1 of its Rules of Procedure and uses its own Form 24. Attendance money for Ontario Tribunals is calculated in the same manner as for Superior Court proceedings according to section 12 of the Statutory Powers and Procedures Act.
Arbitration – for private arbitrations, the rules to be followed may be set out by an established set of arbitration rules or may be ad hoc according to an Arbitrator’s procedural order. With no set forms, summonses in private arbitrations often follow a format similar to that of a civil proceeding in Superior Court, with necessary modifications. In domestic arbitrations, please see section 29 of the Arbitration Act, 1991, which refers to the summons as a “notice to witness”. The Arbitrator signs the summons. Attendance money should be consistent with the civil rules for civil matters and family rules for family matters.
Criminal – a subpoena in a criminal matter is in the format of a Form 16 pursuant to the Criminal Code. In summary conviction matters subpoena attendance money follows section 810 of the Criminal Code and the Schedule to Part XXVII of the Criminal Code, subject to a particular province’s right to adjust the attendance money. At the time of publication (October 2022), attendance money was $4 per day plus $0.10 per mile ( approximately $0.161 per km). At the time of publication (October 2022), attendance money for a person 10 km from the Courthouse would be $7.22.
Provincial Offence – a provincial offence is a quasi-criminal matter governed by the Provincial Offences Act, in which Act a summons is sometimes the document that begins the process of charging a defendant with an offence (section 22, Form 7) or a summons is sometimes the document that is used to compel a witness to attend trial (section 39, Form 109 under R.R.O. 1990, Regulation 200 of the Courts of Justice Act). The Provincial Offences Act makes no reference to the payment of attendance money. Attendance money is not required for provincial offence summonses.
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