Since it was enacted in 1996, Rule 76 of the Ontario Rules of Civil Procedure has provided for a simplified procedure to streamline claims of relatively modest monetary value. The goal remains to reduce legal costs and speed up the administration of justice.
The Government of Ontario made significant changes to the simplified procedure rule effective January 1, 2020 in an effort to increase claims proceeding under Rule 76. These amendments will impact how litigation is conducted in both large and smaller urban centres.
Increase to the Monetary Limit
Effective January 1, 2020, the monetary limit for simplified procedure claims increased from $100,000 to $200,000, exclusive of interest, including the amount of money claimed (if any) and the fair market value of any real or personal property. At the same time, the monetary limit for Small Claims Court increased from $25,000 to $35,000 such that the new Rule 76 applies to claims between $35,000 and $200,000.
Limits on Costs and Disbursements
One of the most significant changes under the new simplified procedure is the limits imposed on a party’s legal costs and disbursements. The new simplified procedure rule generally provides that a litigants’ costs are capped at $50,000 and disbursements are capped at $25,000, exclusive of HST. In other words, no party can recover their costs from an adverse party in an amount exceeding $50,000 and $25,000 in disbursements.
Affidavit of Documents
An affidavit of documents discloses all documents relevant to any matter in issue that are or have been in the party’s possession. Each party must deliver an affidavit of documents within 10 days of the close of pleadings (i.e. after the delivery of the claim, defence, replies, cross-claims and third party claims).
Within 60 days of the filing of the statement of defence or notice of intent to defend, the parties must talk to each other about whether all relevant documents have been disclosed and whether settlement of the issues is possible.
As a result of the increased monetary limit, oral examinations for discovery by any each party will increase from 2 to 3 hours. Mandatory mediation is required for cases in Toronto, Windsor and Ottawa.
In an attempt to resolve matters in shorter timeframes, the new simplified procedure provides for accelerated or strict timelines:
- Trials cannot exceed 5 days;
- An action is to be set down for trial no later than 180 days from the first defence or notice of intent to defend;
- A pre-trial conference date will be set within 180 days of the action being set down for trial;
- At least 30 days before the pre-trial conference, the parties will have to agree on a trial management plan that contains a list of all witnesses (including experts) and divides the 5 days allotted between opening statements, evidence in chief by way of affidavits or discovery transcripts, cross-examinations, re-examination and oral argument.
The proposed trial management plan has to be filed at least 5 days in advance of the pre-trial conference, along with the affidavit of documents, any expert reports, and a three-page statement of the issues and the party’s position on those issues.
The judge at the pre-trial conference can, among other things, fix the number of witnesses, fix dates for the delivery of witness affidavits, and approve or modify the trial management plan.
Jury trials will no longer be permitted in Simplified Procedure actions commenced after January 1, 2020. When it comes to claims of slander, libel, malicious arrest, malicious prosecution or false imprisonment, a party can file a jury notice with a notice stating that the action is continued as an ordinary trial. If the jury notice is struck out, the trial is to continue under the rules of simplified procedure.
All Rule 76 trials will proceed with the timelines fixed by the trial management plan. Under the new Rule 76, the parties may:
- Make opening statements;
- Adduce evidence by affidavit (although not mandatory);
- Cross-examine a party if adverse in interest;
- Re-examine any witness cross-examined;
- Adduce proper reply evidence to a defendant’s case, with leave; and
- Make oral arguments.
The trial judge can vary any of the times set out in the trial management plan, but cannot extend the duration of the trial beyond 5 days.
The changes to Rule 76 aim to increase access to justice while promoting cost-effective litigation and reasonable use of judicial time. Counsel must now manage a client’s expectations, stickhandle all pre-trial steps, and complete the (potentially) 5-day trial within the $50,000 and $25,000 cost and disbursement limits. Of course, a client can instruct their lawyer to exceed the cost and disbursement limits, but cannot expect to recover any amount over and above those limits from the other side.