Recent changes to the Ontario Rules of Civil Procedure
For those of you who may not know Rules of Civil Procedure (the “Rules”) is a set of rules, which as the name implies, govern the civil court procedure in Ontario. Like all other statutes, the Rules are available to public in Ontario government’s website at www.ontario.ca and can be accessed by clicking on this link.
The provincial government has recently introduced a number of changes to the Rules, which I briefly discuss below. These changes have been made on October 23, 2019 but will not come into effect until January 1, 2020. The recent changes were made to streamline the litigation process in “simplified procedure” cases, which are in short, claims for between $25,000 and $100,000, exclusive of interests and costs.
We will discuss simplified rules and simplified procedure in a separate posting but for the purpose of this blog, you should note that simplified procedures are only available for claims that are for money, real property, and/or personal property. Furthermore, simplified procedures are not available to class proceedings, construction lien actions (with the exception of trust claims), case managed actions, family law matters, applications, and Small Claims Court Actions.
Below are some of the most important changes to the Rule, coming into effect on January 1, 2020:
Monetary Threshold is increased to $200,000: previously the monetary cap for claims that could be initiated and/or continued under the Simplified Rules was $100,000. As of January 1, 2020, however, claims for up to $200,000 (which would otherwise qualify for simplified procedures, i.e. are for money, real property and/or personal property) must go through the simplified procedure. The $100,000 limit was introduced on January 1, 2010 (increased from previous cap of $50,000). This increase has been welcomed by the Ontario Trial Lawyers Association (OTLA) which also recommended increasing the monetary jurisdiction on an annual basis to account for increase in costs of living and litigation.
Jury Actions do not quality: this is arguably the most important change. Previously, any party in the proceedings could force the action (unless otherwise prohibited by statute) to be tried by a jury, by serving and filing a Jury Notice. In personal injury actions that party was almost always the defendant (read “the insurance company”), particularly in GTA trials. The reason for insurers’ preference for having the action tried by juries can be found in precedents. A review of the pattern of previously tried personal injury trials shows that juries’ awards of damages are typically less than judges.
Increase to examination for discovery time: prior to the January 1, 2010 changes, examination for discovery was not available to simplified procedure actions. On January 1, 2010 amendments were made to the Rules which allowed for 2 hours of examination for discovery. As of January 1, 2020, the parties are permitted to conduct up to 3 hours of examination for discovery.
Requirement to agree on a trial management plan: this is completely new: as of January 1, 2020 the parties to a simplified procedure action are required to agree on a proposed trial management plan, no later than 30 days before the pre-trial conference, and file a copy with the court, by no later than 5 days before the pre-trial conference.
The parties no longer have the option of having an “ordinary” trial: previously the parties to a simplified procedure action could mutually decide to have an “ordinary” trial instead of a “summary” trial. Rule 76.12 sets out how a summary trial shall be conducted. If the parties failed to agree on the question of whether they wished for their action to be tried in the “ordinary” or “summary” fashion, the pre-trial conference judge or case management master had to determine the appropriate mode of trial considering all circumstances. As of January 1, 2020, however, the option of having a simplified procedure action tried in the “ordinary” fashion is no longer available. All simplified procedure actions will be tried in the “summary trial” mode, according to Rule 76.12.
Duration of trial may not exceed five days: this change requires completion of all summary trials in no more than 5 days.
Limits to Costs and Disbursements: this is also new: no party to a simplified procedure actions commenced on or after January 1, 2020, is entitled to recover more than $50,000 in costs or $25,000 in disbursements (exclusive of HST), unless an Act provides otherwise or a party (usually the plaintiff, or plaintiff by counterclaim) changed his or her claim to the simplified procedure, from ordinary rules. Rule 76.13 (1) provides that regardless of the outcome of the action, if the simplified procedure rules become applicable as a result of a party amending his or her pleading (in other words, if a party brings his or her action into simplified procedure from ordinary rules), the other party is entitled to receive costs incurred up to the date of amendment, which costs would have not been incurred had the proceeding been commenced under simplified procedure in the first place.