On January 1, 2010 the Ontario Rules of Civil Procedure will undergo the most extensive changes since its enactment in 1985. A number of the changes will affect employment disputes. They are:

Increase in Threshold for Claims

The threshold for Small Claims actions will be raised from $10,000 to $25,000 and the threshold for Simplified Procedure actions will be raised from $50,000 to $100,000. The significance of these increases is that it will now become easier for individuals to bring claims, especially short service employees and/or employees who do not have a particularly large compensation package.

Changes to Summary Judgment Rules

In the employment law context, summary judgment motions are brought by dismissed employees who believe that they have not received their full common law notice entitlement upon termination of their employment. The motion is brought for example, when the only outstanding issue which remains to be decided is what monetary amount is owed to the dismissed employee (for notice, severance, etc.).

Currently, there are strict rules relating to summary judgment motions. A motions judge can only grant summary judgment if there is no genuine issue for trial and/or the only issue which is outstanding is the amount owed. The motions judge is not currently permitted to weigh evidence, evaluate credibility or draw inferences.

After January 1, 2010, a judge hearing a summary judgment motion will now be permitted to a) weigh evidence; b) evaluate credibility based on affidavit material; c) draw reasonable inferences from the evidence; and/or d) conduct a mini-trial which requires oral evidence. Therefore, even if there are outstanding issues (beyond just the monetary amount owed) that would currently require a trial, a party can bring a motion for summary judgment and request that the motions judge dispense with the issues to prevent the need for a full trial.

In addition, the cost consequences of bringing a summary judgment motion will change. After January 1, 2010, the cost sanctions for improperly bringing a summary judgment motion will be reduced significantly, making summary judgment motions more appealing to bring.

Changes to Discoveries Rules

There are numerous changes to the discovery rules, which will come into force on January 1, 2010. Most notably, discoveries for most non-Small Claim or Simplified Procedure matters will be limited to one day (7 hours) of discovery (with limited exceptions). In addition, the scope of examinations will become more narrow. Parties will only be required to answer questions and produce documents “relevant to any matter in issue” (which is much more narrow than the current wording, “relating to any matter in issue”).

Also notable is that starting January 1, 2010, parties in actions brought under the Simplified Procedure rules will be allowed two hours of examinations per party. Currently there is no entitlement to examinations for discovery under the Simplified Procedure rules.

How will the changes affect Employers?

  • Because of the threshold increases, Employers may see an increase in claims against them, especially Small Claims actions.
  • The increase for Small Claims may also lead to an increase in self-represented litigants (individuals do not need a lawyer to bring a claim under the Rules of the Small Claims Court). This may lead to less sophisticated negotiations and litigation.
  • The changes to the summary judgment rules will make it even easier for dismissed employees to bring a summary judgment motion. While there are significant cost savings which can be associated with resolving issues through summary judgment, the changes reduce the amount of time for settlement before an employee “gets their day in court”.
  • The changes to the discovery rules limit the scope and duration of examinations for discovery – depending on the case, this can be helpful or be a hindrance.
  • The new rules allowing for examinations for discovery in Simplified Procedure are useful in that they allow for the opportunity to examine parties prior to trial.