December 20, 2019

Simpler, Cheaper and Faster Trials: Rule 76 (Simplified Procedure)

Simpler, Cheaper and Faster Trials: Rule 76 (Simplified Procedure)

Written by: Rick T. Aucoin

Simpler, Cheaper and Faster Trials: What you Need to Know About the New Changes to Rule 76 (Simplified Procedure)

By Rick Aucoin, Partner, and Kendall Andjelkovic, Lawyer, Beard Winter LLP

More expeditious and affordable trials are coming to a courtroom near you. Are you up to speed on the new changes that the Attorney General for Ontario will be making to Rule 76 (Simplified Procedure) as well as the monetary value of claims in Ontario small claims cases?

The effect on day to day practice from the amendments to Rule 76 remains to be seen. Insurers should be ready for the potential of claims being advanced under this procedure and what this means in terms of their counsel and the nature of the legal assistance

The amendments to Rule 76 of the Rules of Civil Procedure provides plaintiffs with an avenue to pursue their claims when the value of the claim is between $25,000 and $100,000. However, since the last amendments made to Rule 76 in 2010, the Simplified Procedure has been underutilized. It does not appear to have addressed the concerns related to the cost, delay and access to justice that lead to the 2010 amendments in the first place.

As a result, a new wave of amendments to Simplified Procedure, under Rule 76, will become effective on January 1, 2020.  These amendments come from a lengthy exchange with all stakeholders in the litigation procedure. These amendments will impact the monetary jurisdiction, costs awards, mode of and length of the trial, and other pre-trial and trial procedures.

Small Claims Court

The monetary jurisdiction of the small claims court is increasing from $25,000 to $35,000.

Simplified Procedure

The monetary jurisdiction of the Simplified Procedure is being increased from $100,000 to $200,000. In accordance with Rule 76.02 (1) the $200,000 ceiling is exclusive of interest and costs. The amount of costs that can be awarded will be limited to $50,000 and disbursements will be limited to $25,000, excluding HST. These limits do not apply if the action was commenced prior to January 1, 2020.

Jury trials will no longer be available for claims brought under Simplified Procedure. However, if a claim is for less than $200,000 but arises from allegations of slander, libel, malicious arrest, malicious prosecution, or false imprisonment, the claim will proceed under the ordinary procedure and therefore a jury trial will be available.

Where parties were previously permitted two hours for examinations for discovery, they will now be given three hours. The rule will now provide that no party shall, in conducting oral examinations for discovery in relation to an action proceeding under the Simplified Rule, exceed a total of three hours of examination regardless of the number of parties or other persons to be examined. Plaintiffs must be ready to examine all defendants in three hours. Each defendant will have three hours in total to examine plaintiffs and co-defendants.

There are also changes to the trial and pre-trial procedures. A pre-trial conference will be scheduled within 180 days of the action being set down for trial. Previously, parties were given 45 days’ notice in advance of the pre-trial conference.

A party who intends to call expert evidence at the trial of the action is still required to comply with rule 53.03. Any expert reports served under rule 53.03 shall now be appended to an affidavit of the expert in which the expert adopts the report for the purpose of giving it as evidence in the action.

At least 30 days prior to the scheduled pre-trial conference, a trial management plan, agreed on by all parties, will be required. The trial management plan must include a list of every witness and an outline of how much time each party will take to examine witnesses and to present opening statements and argument.

Five days prior to the pre-trial conference, parties must file the proposed trial management plan, a copy of their affidavit of documents, copies of any expert affidavits, and copies of the documents relied on for the party’s claim or defence.

Additionally, five days prior to the pre-trial conference, a statement, not exceeding three pages, setting out the issues and the party’s position must also be filed.

At the pre-trial conference, the judge or case management master will fix the number of witnesses for each party, dates for the delivery of any witness affidavits, and a date for trial as well as approve the proposed trial management plan. The trial judge may vary a time set out in the approved trial management plan, subject to the requirement that the duration of the trial does not exceed five days.

Trials under Simplified Procedure will be restricted to a total length of five days. The parties to a Simplified Rules trial will continue to make opening statements, adduce evidence by affidavit, cross-examine witnesses if adverse in interest, re-examine witnesses cross-examined, make oral argument, and (if leave is provided by the trial judge) adduce proper reply evidence in a defendant’s case.

It remains to be seen whether or not the increase in monetary jurisdiction for Simplified Procedure will simply increase the number of claims that plead over $200,000 to avoid the limitations of proceeding under Simplified Procedure or vice versa. The increase in monetary jurisdiction may not be enough to persuade the plaintiff’s counsel to limit the claims of their clients from the outset. Instructions will be very important.

Additionally, limiting expert evidence to affidavits, with only $25,000 available in disbursements, and limiting the trial to only five days may not permit a complicated matter to proceed under Simplified Procedure and will likely significantly curtail the number of experts involved.

The restrictions placed on jury trials, coupled with the limit of five days for the trial in its entirety, has potential to reduce the backlog of cases where the value of the claim is under $200,000. However, for this to occur there has to be motivation on the part of plaintiff’s counsel to limit the claims being brought by their clients from the outset. Perhaps the lack of availability of jury trials, which tend to be favoured by defence counsel, will serve as this motivation for specific claims.

Key Takeaways
  • Obviously, there will be less opportunity to secure examination for discovery evidence so productions by way of affidavit of document evidence becomes paramount.
  • Examinations for discovery should be very targeted in terms of the evidence being obtained.
  • There will be more substantial workup of an action proceeding into a pre-trial thereby increasing expense budgets to that point in the litigation. Insurers should be ready for such expenses on their files. All witnesses will have to be identified as of the pre-trial process.
  • The amendments to Rule 76 may bring about a useful procedure for insurers pursuing subrogation matters where the claim pursued is a set amount that falls within the monetary jurisdiction of Simplified Procedure.
  • Even in instances where the matter falls slightly outside of the monetary jurisdiction, it may be worthwhile to limit the claim to $200,000 to secure a more expeditious and economical judgment; particularly, if the amendments serve to reduce the court backlog as intended and result in a more expeditious and, as such, a less expensive process.
  • The no-jury provisions do not apply to an action in which a jury notice is delivered before January 2020. It is understood that certain counsels have commenced motions at this early stage and for return dates post January 1, 2020, seeking orders to limit existing claims to the new simplified limit and to strike the jury notices from existing actions. With the current amendment, it is anticipated that such motions will fail if opposed.
  • The costs 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.

Rick Aucoin recently spoke about the New Changes to Rule 76 (Simplified Procedure) on an audio conference presented by Canadian Defence Lawyers (CDL) on December 11, 2019. Click here to listen to the recorded presentation.

Beard Winter lawyers are available to speak with you and your team about this topic. Please contact Ruth Morayniss to schedule a time.

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