On January 1, 2010, a number of changes to the Ontario Rules of Civil Procedure are to come into effect that are intended to make litigation more accessible and cost effective. Those changes are not as fundamental as the proposed changes to the British Columbia rules, but they are intended to change specific troublesome aspects of litigation in Ontario. While some of the pending changes, primarily the increase in the upper limit for Small Claims Court lawsuits to $25,000 (from $10,000), have received wide publicity, a number of other important changes have been overlooked and are summarized briefly below.
Reduction of the Scope of the Discovery Process
The most substantial procedural change which will come into effect in 2010 is that the scope of both the documentary and oral discovery process will be narrowed. This is accomplished through three general areas of change:
- A limit on the length of examinations for discovery is being introduced, limiting parties to seven hours of examinations for discovery each, unless the parties consent to longer examinations or there is a court order. This is a substantial change from the current rules, which place no limit on the length of examinations for discovery.
- As in British Columbia, an emphasis on "proportionality" is being imported into the rules regarding documentary productions and examinations for discovery. The new proportionality rule provides authority for the court to limit questions and documentary productions where the cost of responding to such demands is out of proportion to the amount in dispute in the litigation. This is a change from the current system, where the rules impose identical production obligations in every case, regardless of the amount in issue (although in recent years, courts have been willing to interpret the rules in such a manner that includes some consideration of proportionality).
- The scope of examinations and documentary productions will be changed from requiring parties to answer questions and produce documents "relating to any matter in issue" to a narrower standard of being "relevant to any matter in issue". While, on its face, this appears to be a small semantic change, it eliminates the current "semblance of relevance" test, which is very broad, to a test which requires a party to show actual relevance.
The most important aspect of these three changes will be to provide the courts with some leeway to enforce a more common-sense approach to discovery, and reduce the opportunity to abuse the system through overly broad examinations and documentary production demands.
While these rules will potentially reduce the amount of pre-trial discovery time in most instances, cases that fall within the Simplified Procedure rules will now change from having no examinations for discovery, to allowing each party up to two hours of examinations for discovery. This change is being made in conjunction with an expansion in the scope of the Simplified Procedure rules, which will apply to claims of up to $100,000 (an increase from the previous level of $50,000).
The current rules regarding motions for summary judgment (i.e., motions to obtain judgment without the necessity of having a trial) have been very strictly interpreted by the Court of Appeal. A party cannot currently obtain summary judgment unless it can essentially be shown that the other side lacks any possible chance of success.
Under the new rules, a judge's powers will be broadened substantially:
- A judge hearing a summary judgment motion will be permitted to make assessments of credibility (i.e., based on affidavit material, without hearing witnesses) and weigh the evidence in determining the matter, as opposed to the current system, where a judge must take the evidence of the party resisting summary judgment at face value, unless it is incapable of being true.
- While summary judgment motions will still be conducted based on affidavit material, rather than based on testimony in open court, a judge hearing the motion can require a "mini-trial", involving oral evidence.
- The cost consequences for bringing an unsuccessful summary judgment motion will be less harsh, as costs will now be awarded on a "partial indemnity" basis rather than a "substantial indemnity" basis, unless the motion was brought unreasonably or in bad faith.
As a result of these changes, it is expected that summary judgment motions will become more commonplace, given the higher likelihood of a matter being decided on such a motion, and the softening of the potential negative costs consequences.
The new rules also provide for a number of minor changes, such as requiring the parties to agree upon a "Discovery Plan" at the outset of a case, and requiring expert witnesses to certify, in writing, that they understand their duty to be fair, impartial and nonpartisan. Timelines within litigation have also been changed, such as increasing the notice period for motions from a minimum of four days to seven days, and requiring expert reports to be delivered much earlier in a proceeding.
Ultimately, time will tell whether these various changes to the Rules of Civil Procedure have the desired effect of reducing the cost and time involved in litigation, and increasing access to justice for litigants. Next year will likely be an active year for lawyers and the courts alike in Ontario, as everyone begins to adapt to these new rules.