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Overhaul to Rule 76 Simplified Procedure

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In an effort to increase access to justice, reduce legal costs, and expedite litigation, the Government of Ontario has made significant changes to the Simplified Procedure Rules and the jurisdiction of the Small Claims Court. These changes, which take effect on January 1, 2020 will change how litigation is conducted in Ontario. These changes affect monetary limits, costs awards, trial procedure, juries, and timelines, and are important for lawyers and clients to keep in mind when commencing lawsuits.

Increases to Monetary Jurisdiction

The monetary jurisdiction for Simplified Procedure actions under Rule 76 of the Rules of Civil Procedure will increase from $100,000 to $200,000. Likewise, the Government announced that the monetary jurisdiction for the Small Claims Court will be increased from $25,000 to $35,000 (which will coincide with in an increase in costs available in the Small Claims Court, as costs in Small Claims Court are tied to the amount claimed).

On or after January 1, 2020, claims between $35,000 to $200,000 can be commenced using the new Rule 76.

Limits on Costs and Disbursements Awards

Under the new Rule 76, a party’s costs will be capped at $50,000, and disbursements at $25,000, exclusive of HST, except for the cost consequences of Rule 76.13 or an Act. This is a significant change as there was previously no limit on costs and disbursements under Rule 76.

The cost consequences of Rule 76.13 for non-compliant actions within the $200,000 monetary jurisdiction, and the new limit on costs and disbursements, will not apply to actions commenced before January 1, 2020.

Litigants with claims between $25,000 to $100,000 may want to consider issuing a Rule 76 action prior to January 1, 2020 to preserve their potential costs and disbursements awards.

Timelines

The new Rule 76 provides accelerated timelines in an effort to get matters resolved in a timelier fashion, including changes that limit trials to 5 days.

Oral discovery by any party will be increased from two to three hours, likely a result of the increased monetary jurisdiction.

Pre-trial conferences are to be scheduled in accordance with Rule 50.02, i.e., 180 days after the action is set down for trial. The action is to be set down for trial no later than 180 days from the first defence or notice of intent to defend.

At least 30 days before the pre-trial conference, the parties are to agree on a trial management plan that contains a list of all witnesses (including experts) and a division of time, not to exceed 5 days in total, between opening statements, evidence in chief by way of affidavits or discovery transcripts, cross-examination, re-examination and oral argument.

Pre-Trial Conference

Pre-trial materials will be more onerous and costly under the new Rule 76; however the new requirements are an attempt to ensure parties are ready for trial sooner.

For the pre-trial conference, despite rule 50.04, the parties are to file the following at least 5 days in advance:

  • A copy of the proposed trial management plan;
  • Affidavits of documents and documents relied upon;
  • Any expert reports that must be appended to an expert’s affidavit; and
  • A three-page statement of issues and the party’s position.

At the pre-trial conference, the judge or master may do the following:

  • Fix the number of witnesses (other than experts) whose evidence may be adduced;
  • Fix dates for the delivery of witness affidavits, including outstanding expert affidavits;
  • Fix a trial date (subject to the direction of the regional senior judge); and
  • Approve or modify the trial management plan, except for the 5 day trial limit.

The trial record will now also contain the approved trial management plan and expert affidavits.

Jury Trials

Jury trials will no longer be permitted in Rule 76 actions. For actions commenced prior to January 1, 2020, jury trials will be permitted if a jury notice was delivered before January 1, 2020.

After January 1, 2020, jury trials will be permitted for actions below $200,000, only for claims of slander, libel, malicious arrest, malicious prosecution, and false imprisonment.  Trials for these matters must proceed or continue as an ordinary action. If the jury notice is subsequently struck out, then the action must be continued under the new Rule 76.

If parties want a jury trial under the Simplified Procedure, they will want to consider commencing an action and filing a jury notice before January 1, 2020.

Trial

There will no longer be any distinction between ordinary and summary trials. Summary trials under the old Rule 76 mandated affidavit evidence and were subject to specified time limits.

All Rule 76 trials will proceed essentially as summary trials (but without the specified time limits in Rule 76.12), will be subject to the trial management plan (which fixes these times), and cannot exceed 5 days. This procedure appears to apply to actions commenced before January 1, 2020.

Parties may conduct trial by:

  • Making opening statements;
  • Adducing evidence, including expert evidence, by affidavit (although not mandatory);
  • Cross-examining if adverse in interest;
  • Re-examining any witness cross-examined;
  • Adducing proper reply evidence to a defendant’s case, with leave; and
  • Making oral argument.

The trial judge may vary any of the times set out in the trial management plan for these components of the trial, except for the 5-day limit. When deciding whether to commence an action under Rule 76, litigants and lawyers should consider whether a 5 day trial is possible in the circumstances of each case. The 5 day limit may become problematic in complicated matters involving a battle of numerous experts.

Takeaway

For pending claims with limitation periods expiring after January 1, 2020, consideration should be given as to whether to commence an action under the current procedure or to wait until the changes take effect. Some of the changes will still apply to actions commenced before January 1, 2020.

The changes purport to increase access to justice while reducing legal costs, and expediting litigation, but some of the amendments may increase legal fees while reducing the ability to recoup them.

We have used over 10 Pallett Valo lawyers on different matters and find that they are always responsive.
Dr. Don Pinchin, Pinchin Environmental Ltd.