The Ontario Rules of Civil Procedure1 (the “Rules”) underwent substantive changes on January 1, 2010, since the Rules were first adopted in 1985; brought about by Ontario Regulation 438/08 (the “New Rules”). Though based on the recommendations of the Civil Rules Committee entitled: Civil Justice Reform Project: A Summary of Findings and Recommendations, major changes to the Rules have been contemplated since 2003, when a far ranging report on the Rules was issued as part of the deliberations of the Discovery Task Force on the Discovery Process in Ontario.
The New Rules affect all lawyers, including real estate lawyers, practicing law in Ontario by fundamentally changing the manner of trial preparation, and the strategic and procedural aspects in which matters are litigated. Though litigation is not a major part of real estate practice, there are real estate situations resulting in litigation, thereby increasing risks and costs to a client. As these amendments will likely affect both, it is important to be aware of the changes brought about on January 1, 2010.
In regards to matters commenced prior to January 1, 2010, the courts have already decided that the New Rules generally apply retroactively. Actually, the New Rules require longer periods for filing court materials and for completing pre-trial procedures, and this has to be taken into consideration when submitting documents to the court. Also, there is a new practice direction outlining the requirements for filing long and short motions in Toronto and thereabouts. Then, non-inclusion of holidays mean that for a seven days advance filing period, the filing has to be done nine days or more in advance.
The New Rules vigorously emphasize the duty of an expert to the court, upholding thereby the legal maxim that expert evidence “should be, and should be seen to be, the independent product of experts uninfluenced as to form or content by the exigencies of litigation”. Not only does this require an expert to sign a certificate acknowledging the accuracy and independence of his or her report before it can be filed with the court, but also it is likely to increase the number of challenges alleging bias against an expert and his or her expert report. The adversarial system is prone to certain beliefs in expert witnesses that his or her side is right and that his or her opinion should advance the case of the party retaining the expert and that they should advocate for the position of the party who has retained him or her. Such expert advocacy is strictly a no-no under the New Rules and in common law. As there is no judicial guidance about the degree of bias necessary to rule expert testimony as inadmissible, it remains to be seen how the New Rules will play into such challenges.
With regard to case management, the new Rule 77 now applies in Toronto, Ottawa and county of Essex and takes the “case management light” approach of former Rule 78 which described case management in Toronto. It shows that case management is to be used only when necessary and only to the extent necessary, and that the greater share of the responsibility for managing the proceeding and moving it along expeditiously remains with the parties. Assigning a proceeding to case management considers the complexity of the issue at trial, the public importance of the action, the number of parties and the amount of intervention the action is likely to require and so on.
The most significant change in mandatory mediation under the New Rules is that it is no longer limited only to case managed or Simplified Procedure cases. It is now applicable to all actions that were governed by the Rules prior to January 1, 2010 and to all actions commenced on or after January 1, 2010 in Toronto, Ottawa or Essex County. The mediation process should be for 3 hours minimum, and exclude matters on the Commercial List, mortgage actions, construction lien actions and bankruptcy and insolvency actions. The time period for mediation has been changed from the earlier 90 to 120 days.
The jurisdictional changes brought about are two, a shift in quantum for claims in the Small Claims Court and the corresponding increase in quantum for claims under the Simplified Procedure. This allows individuals and businesses to resolve small claims in a simple and inexpensive way, thereby, increasing the general public’s access to quick and efficient justice. The jurisdiction of the Small Claims Court has increased from claims for $10,000 to claims for $25,000 or less, otherwise, a party would be required to bring a motion to obtain permission to transfer the case to Small Claims Court. Likewise, the corresponding increase in quantum for claims under $100,000 is to be brought under the Simplified Procedure. The general jurisdictional increase thus permits individuals and businesses to resolve small to medium size claims in a simple and expedient way.
Thus, a party that had initiated a claim before January 1, 2010 in the Superior Court for an amount between $10,000 and $25,000, can transfer the claim to the Small Claims Court. This is done when all parties agree to transfer the case to the Small Claims Court, the local Registrar of the Superior Court of Justice would do so. Failing which, the party would be required to bring a motion to obtain permission to transfer the case to Small Claims Court.
The lawyers at Levy Zavet PC are always up to date on any changes in the practice areas we specialize in. Staying on top of changes affecting the Ontario Rules of Civil Procedure is a must no matter what practice area you are in.