Upcoming Changes to the Rules of Civil Procedure (Rule 76 - Simplified Procedure)

In October 2019, Ontario’s Ministry of the Attorney General announced several amendments to the simplified procedure regime under Rule 76 of the Rules of Civil Procedure, which will come into effect on January 1, 2020. The amendments are intended to further streamline court processes, expedite civil litigation and increase access to justice.

The key amendments to Rule 76 will affect monetary limits, costs awards, availability of jury trials, trial timelines and trial procedure. 

Increase of Monetary Jurisdiction

Under the new Rule 76, the monetary jurisdiction for actions proceeding under the simplified procedure will increase from $100,000 to $200,000. This change has the potential to bring many more wrongful dismissal actions within the ambit of the simplified rules.

Limits to Cost & Disbursement Awards

The amendments to Rule 76 will also introduce limits on cost and disbursement awards. Subject to Rule 76.13, which permits adverse cost awards for failing to use the simplified procedure, and unless otherwise prescribed under an Act, costs will be capped at $50,000 and disbursements will be limited to $25,000, exclusive of HST. The limitations on cost recovery, however, will not apply to actions commenced before January 1, 2020.

The Availability of Jury Trials

Jury trials will no longer be permitted for actions proceeding under Rule 76. The bar on jury trials does not apply to actions under Rule 76 where jury notice was delivered prior to January 1, 2020. Jury trials will also continue to be available for actions below $200,000 that involve slander, libel, malicious arrest, malicious prosecution and false imprisonment. Such actions, however, must proceed or continue as an ordinary action.

Discovery Process

Under the amended Rule 76, oral discovery by any party will be increased from two to three hours.

Pre-trial Changes

The amended Rule will also require parties to schedule a pre-trial conference within 180 days of the action being set down for trial. Additionally, parties will be required to agree to a trial management plan at least 30 days before the pre-trial conference. Each party must file the trial management plan at least 5 days before the pre-trial conference. The trial management plan must contain: (a) a list of every witness, including expert witnesses, whose evidence a party intends to adduce at trial; and (b) a division of time between the parties, that sets out the allotted times for each party for opening statements, presentation of evidence in chief by affidavit, cross-examination of deponents, re-examination of deponents, and oral argument.

At the pre-trial conference, the judge or master will approve or modify the trial management plan, and will fix the number of witnesses (other than experts) whose evidence may be adduced, dates for the delivery of witness affidavits (including outstanding expert affidavits) and a trial date (subject to the direction of the regional senior judge).

Changes to Trial Procedure

All trials under the simplified procedure regime will be limited to five days. All actions will also be required to proceed by way of summary trial and subject to the trial management plan. The option to proceed as an ordinary trial will no longer be available. During the trial, parties may: 

  • Make opening statements; 
  • Adduce evidence by affidavit (including any expert evidence); 
  • Cross-examine the deponent of any affidavit served, if adverse in interest; 
  • Re-examine any deponent cross-examined; 
  • Upon conclusion of cross-examination or re-examination of deponents, the defendant may adduce evidence by affidavit (and, with leave of the trial judge, the plaintiff may adduce proper reply evidence to a defendant’s case); and 
  • Make oral argument.  

It is significant to note that evidence in chief must be presented by affidavit and the existing time limits for cross-examination, re-examination and oral argument have been removed.

Small Claims Court Monetary Jurisdiction

In a separate but related amendment, the monetary limit for civil claims proceeding through Small Claims Court will be increased from $25,000 to $35,000. Additionally, the minimum claim amount that may be appealed from Small Claims Court to the Divisional Court will be increased from $2,500 to $3,500.

Takeaways for Employers

The amendments to Rule 76 will change how litigation is conducted in Ontario for those actions falling under the Rule. We expect to see an increased use of the simplified rules in employment related matters such as wrongful dismissal claims. It is possible there will be an increase in the number of actions filed by parties who might have otherwise been discouraged by the prospect of legal costs associated with protracted trials.  

The imposition of a five-day trial limit will require careful consideration in cases involving issues such as constructive dismissal and alleged cause. Where actions proceed under the simplified procedure regime, but nonetheless involve significant factual or legal issues or both, parties and their counsel must be prepared to manage the action within the new trial time limits. The cap on length of trials and the new limits on potential costs and disbursements emphasize that parties to litigation will have to use the tools available to them to streamline the proceeding, narrow the scope of matters in dispute and focus on the key issues at hand. 

The above is only an overview and does not constitute legal advice. If you have any questions regarding how these changes may affect you, please contact the firm.

stephen

Stephen Choo