January 2020 ushered in a new decade and with it came some new rules for civil litigators in Ontario. The recent amendments to Rule 76 – The Simplified Procedure provoked scepticism in many lawyers, but others, myself included, welcome this new era of legal practice.
In brief, the most significant changes to Rule 76 for litigants in Ontario are:
- A judge alone trial – There is no longer any ability to deliver a Jury Notice under rule 47.01 unless the case involves an action in Slander, Libel, False Imprisonment, Malicious Prosecution or Malicious Arrest;
- Increase in value – The monetary threshold has increased to $200,000. (The jurisdiction of Small Claims Court has increased to $35,000.)
- Evidence at trial – The evidence of a witness is no longer presented via examination in chief. Witness evidence in chief must be adduced by affidavit. This is an advantage, in that lawyers can now write the witness evidence themselves. Good client preparation, and relevant and concise drafting, is imperative. Expert evidence will also be entered by way of an affidavit, and reports must be appended to the expert’s affidavit.
- Discovery time limit – Each party now has three hours under the new Rules as opposed to two hours, regardless of the number of parties to be examined. (This process does not exist in England and Wales at all. Instead, request for further information is made following service of Disclosure Documents, including witness and expert statements.)
- Costs and disbursements – Costs are limited to $50,000 +HST and disbursements to $25,000 + HST.
- Five-day trial – Trials have been reduced to a maximum of five days. Time management between the parties will be key in order to get through opening statements, evidence in chief, cross-examination and closing arguments within five days.
As a British personal injury lawyer, I am used to working within guidelines similar to the new Simplified Procedure in Ontario. Lord Woolf’s Access to Justice Report in 1996 identified a number of principles that called for change and consolidation in the civil procedure rules that were in force in the U.K. at the time. Among the recommendations and perhaps most important to me, is the “overriding objective” of the new practice rules, which included the duty to “deal with cases justly” by ensuring cases are “proportionate to costs” and expenses are being saved. As a result, a streamlined system for civil litigants was created, and cases were categorised into one of three tracks known as small, fast and multi-track. Each track includes a case value limit and specific court processes the lawyer must follow to progress the case.
The majority of cases I dealt with fell into the fast track system; claims with a value between £10,000 - £25,000 (approx. $17,000 - $43,000 CAD), plus fixed costs and only reasonable disbursements. (In comparison to Ontario, claims for injuries in the U.K., generally have a much lower value.) Case management directions are tailored by the judge on a case-by-case basis, including the way in which witness and expert evidence is adduced at trial (written or oral). Trials are expected to last 1-2 days and are tried by a judge alone.
When considering the elimination of jury trials in Ontario, I reflect on my days as a student, learning about a Court of Appeal case, over which Lord Denning presided. In Ward v James  1 QB 273, CA, an appeal was brought as a result of a judge striking the jury in a personal injury case. The appeal was dismissed, with the Court determining that a jury would not have the appropriate expertise or knowledge required to assess damages in certain personal injury cases and therefore a judge alone trial was the appropriate mode. In the years following this decision, jury trials in civil actions have become almost non-existent. Though it remains a discretionary power in England and Wales, unless the case involves fraud, false imprisonment, malicious prosecution, and in some instances defamation, personal injury lawyers should expect to prepare a case for a judge alone trial. As a result, there is a shorter backlog and a better use of court resources.
In light of the changes, my objective as a lawyer came down to one thing: meticulous preparation. Effective drafting with cogent arguments, aligned with succinct advocacy, became second nature. Everything I wrote and said would undoubtedly be scrutinised by a judge who is more knowledgeable and less forgiving than a jury. The judge would make conclusions based on how I present my witnesses and whom I choose as an expert. Being prepared for a case had never been more important and there was just as much emphasis on making sure the client was fully prepared.
Of course, there were cases that were not as easy to deal with under the streamlined process, in which case, powerful and effective negotiation to settle the case became my objective. In Ontario, mediation is still a mandatory step under the Simplified Procedure in Ottawa, Toronto and the County of Essex.
The courts have been engaged in a long-standing effort to encourage settlement. Notwithstanding the new streamlined trial process, encouraging your client to mediate, even outside the mandatory jurisdictions could generally be more desirable, if the case is likely to cost more than $75,000 in costs and disbursements following a trial. Given that you cannot recover more even if the plaintiff is successful at trial, having the “mediation” conversation with your client may be of utmost importance.
The new Rule may seem like a lot to digest, but having worked with similar limitations in the past, I believe that this is a positive change. I found working within those parameters in the U.K. made me more effective as a lawyer. I was forced to focus on the work that was needed and only take steps that had a direct impact on the success of the case. It was a cost-saving measure that benefitted the client, the justice system and the lawyer and one that, I hope, will bring similar results to Ontario.
About the author
Afsana Gibson-Chowdhury is a mediator in Ontario, and personal injury litigator in the U.K. www.gcmediation.com . Email at firstname.lastname@example.org or call at 647-518-3166.