Practice Direction on how to summons a witness

What is a summons?

A summons is a legal document that orders a person to attend a Tribunal hearing. Sometimes it also requires the person to bring specific documents to the hearing.

Do I need a summons?

Each party is responsible for making sure that their witnesses come to the hearing on the date set for hearing their evidence.

You can ask the Tribunal for a summons if you are concerned a witness may not come to the hearing or a witness needs a summons to be absent from work.

If you do not summons a witness, or you do not summons a witness correctly, and the witness does not attend, the hearing will proceed without hearing evidence from that person.

How do I obtain a summons?

Contact the Tribunal Office as soon as you become aware of the need for a summons.

The Tribunal Office will send you a summons form to complete. You must provide the following information on the form:

• the name of the witness;
• the address of the witness; and
• identify any documents the witness must bring with them. It is helpful to provide a detailed description of the documents you want.

Return the draft summons to the Tribunal Office.

A Tribunal adjudicator signs and dates the summons. It is then returned to you or your legal representative.

Who serves a summons?

Serving the summons on the witness is your responsibility. If the summons is not served correctly, or not served to the witness well before the hearing, the Tribunal may not be able to enforce it.

How is a summons served?

You must serve the summons on the witness in person. A summons is not properly served if it is given to the witness by mail, email or any other method.

You can serve the summons on the witness yourself or you can have someone else do it for you. You can also pay a “process server” to serve the summons on your witness.

At the same time as you serve the summons you must give the witness a covering letter which includes your contact information (name, address, email and phone number) or the contact information of your legal representative and pay the witness the correct amount of “attendance money.” You must also include a copy of the Tribunal’s witness guide.

Paying attendance money in cash is preferred because this avoids disputes about cheques bouncing or failed money transfers.

How do I calculate attendance money?

The witness must be paid $50/day for each day they are needed to attend the hearing.

The witness must also be paid a travel allowance calculated as follows:

• $3.00/day if the hearing is in the place where the witness lives;
• $0.24/km if the witness must travel 300 km or less from their home to where the hearing is being held;
• if the witness must travel more than 300 km to where the hearing is held, they must be paid the minimum return air fare plus $0.24/km each way from the witness' home to the airport and the airport to the hearing; and
• if necessary, an allowance for overnight accommodation ($75.00/ night).

These amounts are set out in Part II of Tariff A of the Rules of Civil Procedure for the Ontario Courts. See https://www.ontario.ca/laws/regulation/900194#BK746

When do I serve the summons?

This will depend on the circumstances but, whenever possible, request the summons several weeks before the hearing begins, so you have time to complete and serve it on your witness before the hearing. Try to serve the summons at least a month before the day the witness is required to attend the hearing so that the witness can make any necessary travel, child or elder care arrangements and take time off work. A summons for a motion for third party records must be served at least 21 days before the motion hearing.

What if the witness does not come to the hearing?

If your witness does not come to the hearing, you will need to prove the summons was served personally and that the required attendance money was paid. Make sure the person who serves the summons can prove this by recording:

• the place, date and time of service;
• how the summons was served;
• how did they know the person served was the witness; and
• the amount of attendance money paid.

If the Tribunal is satisfied the summons was served correctly it may request the Superior Court to issue a warrant for the arrest of the witness.

Accommodation for a witness

Tell the Tribunal Office as soon as possible if the witness requires accommodation to testify or a support person to be present while they testify. See the Tribunal’s Witness Guide: https://opsdt.ca/resources/witness-guide

Effective: January 1, 2023.