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New Rules for Ontario
Published in the July 2009 issue of Litigation Notes - View Article
A number of significant changes to the Rules of Civil Procedure, which govern the conduct of litigation in Ontario, will come into effect in January of 2010
On January 1, 2010, a number of significant amendments to the Ontario Rules of Civil Procedure (“the Rules”) will come into force. These amendments constitute the most significant revisions to the Rules since their adoption in 1985. The amendments were the result of the commissioning of a study entitled the Civil Justice Reform Project by Ontario’s Attorney General in June 2006. This study was conducted by Justice Coulter Osbourne, a former Associate Chief Justice of Ontario. The results and recommendations of this study were then presented to Ontario’s Civil Rules Committee (“CRC”), which appointed an Advisory Committee tasked with considering these recommendations. A great number of these recommendations were adopted by the CRC which has led to the current legislative amendments.
These amendments signal a shift towards the more expeditious resolution of legal disputes, and should be welcomed by all litigants. Three sets of amendments are particularly significant in this respect.
The first set of amendments that demonstrates the shift towards expeditious resolution pertains to the process of seeking summary judgment. A party can bring a motion for summary judgment in circumstances where that party considers that there is no genuine issue for trial, or where the only genuine issue for trial is the amount of damages, or is a question of law. Both parties must file affidavit evidence on such a motion. However, the courts have consistently held that a judge is not entitled to weigh the evidence, draw inferences, or make findings of credibility in order to come to a conclusion. This has set a very high threshold that is overcome relatively rarely. The current amendments dramatically alter this rule, because they expressly permit a summary judgment judge to weigh the evidence, to evaluate the credibility of a deponent and to draw any reasonable inference from the evidence. The amendments entitle the judge to go even further and to order a “mini-trial” where oral evidence is presented, with or without time limits, at the option of the judge. These new powers thus provide a judge with significantly enhanced tools to make a determination as to whether a case is worthy for trial early on.
The amendments also make it less risky to bring such a motion. Whereas the existing rule is formulated in such a way as to suggest that substantial indemnity costs against any losing party is the norm unless the court is satisfied that the motion was “nevertheless reasonable”, the new rule makes substantial indemnity costs available only if a party has acted unreasonably, in bad faith, or for the purposes of delay.
Finally, the amendments also provide enhanced powers for judges to impose conditions if the motion is lost and the matter is in fact going to trial. Effectively, these powers are a form of “case management” to ensure that, even where the expanded process of a trial is needed, this process is kept moving apace. Such powers include the ability to impose a timetable and plan with respect to motions and discovery, that agreements be reached on evidence, and that experts engaged by the parties should meet on a without prejudice basis to discuss the possibility of reaching an agreement on some or all of the issues.
The second significant set of amendments that will provide the opportunity for more expeditious justice pertain to the increase in the monetary limit for the jurisdiction of the Small Claims Court and with respect to matters in Simplified Procedure. The former is increased from the current $10,000, to $25,000. The latter is increased from the current $50,000, to $100,000. It is evident that this will stream more cases into the less complex route of a small claim or a simplified claim; any case where the claim is up to the specified amount must take this route. Conversely, the amendments also provide that, whereas previously no examinations for discovery were allowed in a simplified procedure claim, going forward, a maximum of two hours of examination will be allowed. Furthermore, a plaintiff or defendant can now examine the deponent of any affidavit served by the plaintiff or defendant, with a time limit of ten minutes. However, it seems that this addition will actually promote the prosecution of civil claims by means of simplified procedure, which is always at the option of the parties where the monetary amount claimed is above the limit, insofar as it allows parties some of the benefits of a full-fledged trial process, but without the same costs.
The third set of significant amendments in the shift toward more expeditious proceedings pertains to discovery. These amendments bring about the addition of some entirely new rules. The first significant amendment is the redefinition of the threshold for the inclusion of documents in the affidavit of documents in the existing Rule 30. Whereas currently, documents must be produced “relating to” issues in the case, which is judged on a criterion of “semblance of relevance”, going forward, only those documents actually considered “relevant” must be produced. The second significant amendment is the prima facie curtailing of oral examinations for discovery to a maximum of seven hours per party, or the so-called one day rule. The one-day rule can be departed from where the parties consent. Where there is no such consent, leave must be sought from the court. Granting leave is guided by a number of criteria, including the amount of money in issue, the complexity of the facts, the conduct of the parties and the financial position of the parties. Third, there is a requirement that parties agree to a written discovery plan, which is set out in the new Rule 29.1. Such a plan must include timelines as to the conduct of documentary and oral discoveries, define the scope of discoveries and identify the parties who will appear as witnesses. The amendments also set out principles that should guide a court’s decision with respect to order a party to answer a question or to produce a document. These principles are enshrined in the new Rule 29.2, entitled “Proportionality in Discovery”. These principles include considerations such as whether the time required to do so would be unreasonable, the expense associated with answering the question, and the extent to which making such orders would “unduly interfere with the orderly progress of the action.” Finally, additional amendments provide that where a party asks for leave to examine more than one witness in discovery, the court must satisfy itself that answers cannot be obtained from only one person without “undue expense and inconvenience” and that the examination of more than one witness “would likely expedite the conduct of the action.”
Aside from these three significant sets of changes, the drive towards more expeditious proceedings is also reflected in a number of other individual amendments. For instance, mediation is made mandatory in all proceedings, not just those that are case-managed. Furthermore, the concept of proportionality will be incorporated into the new Rules as an “overarching principle”. To this end, the amendments require courts to make orders and give directions “that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.”
Other changes to be noted are the addition of a new Rule pertaining to the duty of experts, as well as the imposition of additional requirements on reports submitted by experts. The new Rule 4.1 codifies the principles that have until now been promoted through the case-law with respect to the duty of impartiality of an expert in a proceedings. The new Rule states that this duty prevails over any other obligation owed by the expert to the party who engages him or her, and further specifies that the expert must: provide objective and non-partisan evidence; evidence that is related only to his or her area of expertise; and any additional assistance to the court as required. Furthermore, with respect to expert reports, in addition to setting out the substance of the expert’s proposed testimony, the amendments require that the experts also specify the instructions provided to the expert in relation to the proceeding; where there is a range of opinions, the reasons for the expert’s opinion within that range; and reasons for the opinion including a description of factual assumptions on which it is based, research conducted by the expert and a list of documents relied upon by the expert.
Finally, amendments to the case management rule make it clear that case management via the courts is available only by court order, and not at the option of the parties. A court must be satisfied that the complexity of proceedings, the number of parties, and the importance to the public of the issues of fact or law, among other things, justify assignment to case management. Thus, the general rule is that it is ultimately the duty of the parties to manage the proceeding and to keep moving it along.