Technical Changes to Ontario Rules and the Impact for Litigants and Litigators

by Katie Di Tomaso | Apr 13, 2020

In advance of 2020, Ontario litigators saw changes on the horizon when, on October 23, 2019, the Ontario Government announced significant amendments, effective January 1, 2020, to Ontario’s Rules of Civil Procedure.  In particular, the changes were to rule 76 governing actions commenced under simplified procedure.  The purpose of the changes is to make civil litigation more accessible, efficient, and affordable.

At Stieber Berlach LLP, we have already been retained to defend actions commenced under the new rule 76 and have counseled clients on the impact of these changes.

 

Simplified Procedure Background

Rule 76 of the Rules of Civil Procedure is a relatively new rule.  It was introduced in 1996 and had seen limited changes until now.  Originally, the purpose behind introducing a simplified procedure was to shorten court processes, increase expediency of actions through the Superior Court, and reduce costs.  This had been achieved through streamlining costly and time consuming pre-trial procedures such as limiting the scope and time for conducting Examination for Discovery and imposing much stricter timelines for key milestones in the action.  The monetary limit for actions commenced by way of simplified procedure was, until January 1, 2020, $100,000.  To encourage plaintiffs to make use of the simplified procedure process, there were adverse cost consequences for failing to use the process if the plaintiff’s claim fell within the monetary jurisdiction.

In 2019, consultations among key stakeholders were held to develop new changes which further streamline the process under rule 76.

 

Amendments

The main amendments, as set out below, are: (1) monetary limit increase; (2) examination for discovery time increase; (3) removal of civil jury trials; (4) restrictions on trial time; (5) restrictions on recovery of costs and disbursements; and (6) implementation of a well-organized Pre-trial Conference protocol.

  1. Monetary Limit Increase

Importantly, the monetary jurisdiction for actions commenced under simplified procedure has been increased to $200,000.  The benefit of this increase is that more actions can proceed under rule 76 than under the ordinary procedure.  In any existing actions where a plaintiff is claiming between the previous monetary limit and the new monetary limit, the plaintiff can elect to proceed under the new simplified procedure.

As an aside, a separate amendment increased the monetary jurisdiction of the Small Claims Court from $25,000 to $35,000, effective January 1, 2020.

  1. Examination for Discovery Time Increase

The maximum time permitted to conduct Examination for Discovery by each party has increased from 2 hours to 3 hours.

  1. Removal of Civil Jury Trials

Another significant change, particularly for defendants who favour trials by jury, is the elimination of jury trials in most actions commenced under simplified procedure.  The only types of actions commenced under simplified procedure wherein juries are still permitted are in the following enumerated areas: (1) slander; (2) libel; (3) malicious arrest; (4) malicious prosecution; and (5) false imprisonment.

The amendments contain a transition rule which permits a jury trial for actions which were commenced under simplified procedure prior to January 1, 2020 where one of the parties filed a jury notice prior to January 1, 2020.

  1. Restrictions on Trial Time

Trial of actions commenced under simplified procedure cannot exceed five days.  The trials will consist of: (1) an opening statement; (2) adducing evidence by affidavit; (3) cross-examination by an adverse party; (4) re-examination by a party who adduced the evidence; (5) adducing reply evidence; and (6) closing arguments.  No longer can parties conduct 10 minutes of direct examination which had been previously allowed.  No longer are there time limits for re-examination and oral closing arguments, provided the trial can be completed within the overall time limit of 5 days.  Parties are now permitted to read in Examination for Discovery evidence.

  1. Restrictions on Recovery of Costs and Disbursements

A limitation not previously seen in the old rule 76 is a restriction on what parties are able to recover by way of costs and disbursements awards.  Under the new rule, no party is permitted to recover more than $50,000 in costs or more than $25,000 in disbursements (exclusive of HST).  This change does not apply retroactively to actions commenced under rule 76 prior to January 1, 2020.

  1. Well-organized Pre-trial Conferences

Parties must schedule a Pre-trial Conference within 180 days of an action being set down for Trial.  At least 30 days prior to the Pre-trial, parties are required to agree to a Trial Management Plan which each party must file with the court no later than 5 days prior to Pre-trial.  The Trial Management Plan must include: (1) a list of every witness whose evidence a party intends to adduce at trial and (2) a division of time between the parties setting out the intended procedure for the Trial.

A Pre-trial Conference Memorandum must be filed at least five days prior to Pre-trial which sets out a statement no lengthier than three pages, the issues, the party’s position, and Trial Management Checklist.

Parties must also file at least five days prior to the Pre-trial Conference a copy of the party’s Affidavit of Documents, copies of the documents relied on for the party’s claim or defence, and a copy of the any expert affidavit along with the expert’s report for the purpose of introducing it as evidence.

At the Pre-trial, the judge or case management master conducting the Pre-trial will fix the Trial date, the number of witnesses, and a schedule for the delivery of Affidavits intended to be used at Trial.

 

Takeaways for Litigants and Litigators

The new changes have significant implications for litigants and litigators in how to operate under the new regime.  For litigants, the new changes and process will require all parties to know all aspects of their case and to work constructively to ensure compliance with the new rule 76.  This means working collaboratively with all parties to narrow issues and solve problems where possible.  This will require the development and implementation of a focused, intelligent, and creative litigation management strategy which we at Stieber Berlach LLP can assist with.

For litigators, given the tight timelines and limited trial time, parties are encouraged to complete a fair amount of front-end work on building their case or defending the claim in order to run an efficient and effective Pre-trial and, perhaps ultimately, Trial on the real issues.  Planning for the Pre-trial and Trial should start as soon as the file comes in the door.  Considering much of the evidence will be by way of Affidavit, counsel must demonstrate strong written advocacy skills.

At Stieber Berlach LLP we have counseled clients on the impact of the new simplified procedure rules and welcome inquiries in this area.