Insights

Leverage insights from lawyers with decades of experience practicing on the Commercial List.

Lenczner Slaght not only has answers to some of your frequently asked questions regarding all things Commercial List, but we’ve endeavoured to provide content you can’t find anywhere else. Read our interviews and blogs from some of Toronto’s most active Commercial List litigators for in-depth knowledge on the Court.

Where can I find the official rules governing the Toronto Commercial List?

The Commercial List specific practice direction can be found in the Consolidated Practice Direction – Toronto Region, Section G.

What types of matters belong on the Toronto Commercial List?

The Commercial List handles a wide range of commercial law and insolvency matters. Some matters are mandatory and must be brought on the Commercial List in the Toronto Region while others are discretionary. 

The mandatory matters include:

Discretionary matters with a Toronto connection you may bring to the Commercial List include:

Only Toronto matters can appear on the Commercial List. In exceptional cases, the Commercial List Team Lead may authorize the hearing of matters from outside the Toronto Region.

How is the Commercial List different from the regular Civil List?

Principles of Operation: The Commercial List is guided by the “three Cs” of cooperation, communication, and common sense. Commercial List judges expect parties to be collaborative and practical and to avoid unnecessary disputes.

Specialized Expertise: Commercial List judges have specialized expertise in commercial, bankruptcy, and insolvency matters. Where possible, the same judge who determines a substantive component of a proceeding will continue to hear all subsequent substantive components in that proceeding. 

Expedited Procedures: The Commercial List is a specialist in “real time” litigation. The special procedures adopted for the Commercial List are designed to expedite the hearing and determination of matters. The Commercial List derives efficiency from being a “court of non-adjournment.” Matters are expected to proceed on the merits once scheduled, and adjournments are granted only in special circumstances. 

Case Management: A supervising Commercial List judge case-manages most substantive and ongoing matters on the Commercial List, presiding over all aspects of the matter where possible. This approach typically eliminates contested motions on matters such as undertakings or discovery plans, which the judge instead deals with more summarily on case conferences.

How do I get my matter on the Commercial List?

For mandatory matters (CCAA, BIA, receiverships, and WUARA proceedings), you should commence a proceeding on the Commercial List by filing through the Ontario Courts Public Portal. If you mistakenly commenced a mandatory matter on the general Civil List, the Commercial List Office staff may transfer it to the Commercial List on consent of all parties, provided you submit a completed New Matter Request Form and Case Timetable. 

If a matter is urgent, the filing party must flag that the matter is time-sensitive and email the Commercial List Office at mag.csd.to.scjcom@ontario.ca to advise they have uploaded an urgent filing to the portal.

For non-mandatory Toronto matters that require permission of a presiding judge prior to issuance, you must seek approval by writing to the Commercial List Team Lead or another designated Commercial List judge through the Commercial List Office. A request in writing is also required for transfer of non-mandatory matters from the Civil List to the Commercial List. All motions should include a New Matter Request Form.

Consent of counsel for all parties is helpful in obtaining a transfer to the Commercial List, but consent is neither necessary nor sufficient. If the case is not appropriate for the Commercial List, the Court may refuse the transfer even if the parties have consented. 

In every case, counsel must demonstrate a connection to Toronto. In seeking to have a non-mandatory matter issued on the Commercial List, it is incumbent on counsel to provide cogent reasons for the matter to be issued on the Commercial List.

What is a 9:30 appointment?

A 9:30 appointment is an appointment in the judge’s chambers with all counsel.  It is intended to be no more than 10 minutes long and deal with ex parte, urgent scheduling and consent orders. Clients do not attend the 9:30 appointment. 

A brief 1 to 2 page chronology to assist the judge with background is appropriate, but not lengthy briefs. Any materials for a 9:30 appointment should be filed with the Commercial List office before the 9:30.

How do I know whether my case will get accepted under the “basket clause”?

There are several factors impacting if a case gets accepted under the basket clause. The first is the mandatory requirement that there be a connection to Toronto. If the parties have no connection to Toronto other than that counsel are from Toronto, it is very unlikely your matter will be issued on the Commercial List. 

Categories of cases sometimes accepted by the Commercial List include:

  • Interpretation of commercial contracts
  • Enforcement of commercial arbitral awards or foreign judgments 
  • Commercial fraud cases including Mareva injunctions and Anton Piller orders

Generally, factors to consider include commercial subject matter, complexity, number and types of parties, urgency, and whether the case will benefit from case management. See The Toronto Dominion Bank v Bank of Nova Scotia at para. 4.

How do you schedule a 9:30 appointment?

Commercial List judges hear chambers matters each day at 9:30 a.m. via Zoom. The 9:30 appointment efficiently addresses scheduling, consent, urgent, or ex parte matters. Clients (other than trustees or other court officers) do not typically attend and counsel do not gown.

Where chambers matters are particularly urgent, the Commercial List judge may, at their discretion, schedule an appointment at other times of the day, including before or after the usual court sitting day.

Parties must submit the Request Form and a consent (or competing) Case Timetable through the Ontario Courts Public Portal. Parties should provide a brief outline of no more than three pages about the issues on which they seek directions. 

For urgent requests, email the Commercial List Office at mag.csd.to.scjcom@ontario.ca to advise that you submitted an urgent request to the portal. 

How does a case conference differ from a 9:30 appointment?

Case conferences typically run 30 to 60 minutes (also via Zoom) and allow for more substantive discussions about case management, scheduling issues, and methods to resolve contested issues. Case conferences can even take the form of a “judicial mediation” when appropriate. The supervising judge may schedule a case conference on their own initiative, or any party may request one. Parties should schedule a case conference instead of a 9:30 appointment for any matters expected to take longer than 15 minutes. 

Which form do I use?

There are two important forms, one of which must be used with every request: 

  • New Matter Request Form: Used for matters new to the Commercial List
  • Request Form: Used every time a party books a case conference or 9:30 appointment. Even if the Commercial List has identified an available date for you, they will not book it formally until you submit the request form.

What are the “Three Cs of the Commercial List”?

The “three Cs” are cooperation, communication, and common sense.

These principles guide all interactions on the Commercial List. Counsel are expected to cooperate with one another, communicate effectively about scheduling and procedural matters, and apply common sense to resolve issues without unnecessary court intervention. This philosophy underlies many of the Practice Direction’s requirements, such as the expectation that counsel will confer among themselves before scheduling appointments, agree on timetables where possible, and minimize adjournments through cooperative problem-solving.

I want to find a model order for a Commercial List proceeding. Where can I find one?

The Superior Court of Justice website includes a variety of Commercial List model orders including CCAA, receivership, Anton Piller, and Mareva orders. Click here to access them. When using a model order in a Commercial List proceeding, don’t forget to provide the Court with your draft order and a blackline against the model order, so the Court knows what changes you made (and be prepared to justify any substantive changes).

What should my materials look like on the Commercial List?

Page Limits: Commercial List judges strictly enforce page limits. Factums must not exceed 25 pages without leave, and the Court encourages shorter, concise factums. The Court permits reply factums but they must not exceed five pages and must address only new matters not previously raised in the responding party’s factum. 

Aide Memoires: Parties should use Aide Memoires in case conferences and limit them to three pages (although judges may enforce this limit less strictly).

Factums & Outlines of Argument: Even where the Rules of Civil Procedure do not require a factum, parties appearing on the Commercial List must file a factum with their materials on any contested or potentially contested matter. For uncontested motions or applications, counsel should still file an outline of argument or Aide Memoire to give the presiding judge a roadmap of the relief sought and the key supporting arguments. 

Document Format & Length: All documents must include hyperlinked indices to source documents, and no single document may exceed 500 pages.

Compendia: Parties must supplement the formal record for any matter with a Compendium of key materials to be referred to in argument, including fair extracts of documents, transcripts, previous orders, and authorities. The Compendium should take the form of an electronic index hyperlinked to pinpoint page references in Case Center or CanLII. Commercial List judges appreciate the use of a Compendium during oral arguments.

Visual Aids & Synopses: The Court encourages the use of diagrams, corporate organization charts, lists of persons involved, point-form chronologies, and other synopses of complex or technical evidence where appropriate. 

Organizing & Citing Authorities: Where a case is available on CanLII, provide a hyperlink to the passages referred to in your materials and use neutral citations (e.g., 2010 ONSC 1) wherever available. For all cited cases not publicly available on CanLII (and from approved private electronic databases, such as Quicklaw and Westlaw), prepare a Book of Authorities. Highlight or sidebar the passages that will be referred to in argument. The Commercial List maintains an Authorities Book for Commercial List, listing frequently cited authorities on the Court’s website. Given the Court’s familiarity with those cases, parties need not reproduce them in a Book of Authorities or other filed materials.

I would like to get more involved in Commercial List practice. How can I learn more?

There are numerous organizations that you can get involved with. Some of the main ones include:

  • Commercial List Users’ Committee: The Users’ Committee is comprised of members of the judiciary who sit on the Commercial List from time to time, Court-approved practitioners who are familiar with the operation of the Commercial List and who are nominated by relevant user organizations in conjunction with the Users’ Committee, and a representative of Courts Administration from the Commercial List Office. The Users’ Committee meets regularly to consider improvements to the organization and operation of the Commercial List and to make recommendations to the Regional Senior Justice and the Chief Justice in that regard. The Users’ Committee releases a newsletter once a year to update the profession about the Commercial List and practice before the Court. Current and historical newsletters can be found here.
  • The Advocates’ Society: The Advocates’ Society is a nationwide organization that supports and fosters excellence in advocacy. It has a commercial litigation practice group which regularly hosts programs relating to commercial litigation and Commercial List practice.
  • Ontario Bar Association: The Ontario Bar Association is a branch of the Canadian Bar Association and a body that represents lawyers across Ontario. Both the Civil Litigation and Insolvency sections host programs related to Commercial List practice.
  • Turnaround Management Association: The Turnaround Management Association is an association of corporate restructuring professionals.
  • Insolvency Insider: Insolvency Insider is an independent publication dedicated to the Canadian insolvency market. It provides insolvency practitioners, lawyers, lenders, and other restructuring professionals with the most up-to-date and comprehensive industry news, data, and insights. It includes descriptions of recent insolvency filings on the Commercial List and other courts across Canada.

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