Important Rule Changes to Speed Up Litigation
Rule 76 of the Rules of Civil Procedure provides for actions of a lesser monetary value to proceed by way of a more streamlined process called the “simplified procedure.” The purpose of the Rule is to reduce the cost of litigating claims of modest amounts by reducing the amount of unnecessary, expensive and time-consuming procedure. Significant amendments to Rule 76 were introduced on October 23, 2019 to take effect on January 1, 2020. The most significant changes are as follows:
- Monetary limit is increased from $100,000 to $200,000
- Jury trials are not permitted-trials will proceed by judge alone
- Examinations for discovery by each party to increase to 3 hours instead of 2
- Trial length capped at 5 days
- Costs capped at $50,000
- Disbursements capped at $25,000
- Hard limit of 3 experts
- Examinations-in-chief to be done by affidavit only
Mandatory Mediation and Rule 24.1
Simplified procedure cases commenced in Toronto, Windsor and Ottawa continue to be subject to mandatory mediation pursuant to Rule 24.1.
The amended rules require that a pre-trial date must be scheduled within 180 days of the action being set down for trial. At least 30 days before the pre-trial conference, the parties must agree upon a proposed trial management plan to be filed five days before pre-trial. The judge or master hearing the pre-trial conference is to approve the proposed trial management plan fixing the division of time for each party at trial.
Under the amended rules, examination in chief of a deponent is not permitted. A party can cite evidence at trial by affidavit and, under Rule 31.11, by reading in evidence from examinations for discovery; the latter was not permitted prior to the amendments. The timelines for cross-examination, re-examination, openings, and oral arguments, are fixed by the approved trial management plan. At pre-trial, the presiding judge or master is also to fix trial dates, the number of non-expert witnesses and the dates for the delivery of any witness affidavits.
Trial Procedure and Elimination of Jury Trials
Actions commenced under the new procedure will move forward as summary trials, tried by a judge alone for a maximum of five days. The amendments prohibit jury trials. The restriction on the delivery of a jury notice does not apply to actions in which a jury notice is delivered before January 1, 2020. Lawyers may consider delivering a jury notice for any outstanding simplified procedure actions they have prior to the start of the New Year. Parties to actions involving a claim for malicious prosecution, false imprisonment, defamation, libel or slander may still deliver a jury notice on or after January 1, 2020, provided they continue their action under the ordinary procedure by delivering a Form 76A.
Parties intending to call expert evidence at trial must comply with the requirements of Rule 53.03 and must now must append to an expert report served under Rule 53.03, an affidavit from the expert in which the expert adopts the report for the purpose of giving it as evidence. Expert affidavits to be cited at trial are to be included in the trial record.
Costs and Disbursements
Recovery of costs and disbursements will be limited to $50,000.00 and $25,000.00 excluding H.S.T, respectively, except where an Act provides otherwise, and subject to the cost consequences under Rule 76.13 for failing to use the simplified procedure. These new limits on recovery do not apply to actions commenced prior to January 1, 2020.
Summary of the Amendments to Rule 76 of the Rules of Civil Procedure in Ontario
As the monetary jurisdiction of Rule 76 is increased to $200,000.00, more injured plaintiffs can expect their cases to proceed by way of the more efficient and simplified procedure.
Never forget that it is your case. At Bogoroch & Associates LLP, we are committed to keeping our clients fully informed about when the case is likely to be completed, whether it will proceed under the simplified procedure of Rule 76, as well as providing an approximation of what your case is worth. For more information on the amendments to Rule 76 of the Rules of Civil Procedure in Ontario or any other legal matter, please contact Bogoroch & Associates LLP. We offer free consultations and would be honored to help you.